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ESSAYS 



SPEEOHE S 



JEREMIAH S. BLACK 



WITH A BIOGRAPHICAL SKETCH 



BY 

CHAUNCEY F. BLACK. 



NEW YORK: 
D. APPLETON AND COMPANY, 

1, 3, AND 5 BOND STREET. 
1886. 



Efts- 

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COPYEIGHT, 1886, 

bt cuauncey f. black. 



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COMPILEE^S NOTE. 



The speeches and essays comprised in this book are selections 
from the most important productions of the author. It has not 
been without difficulty that some of them were recovered for the 
purpose. When Judge Black had uttered a speech, or written an 
essay, he concerned himself no more about it, but left it to find 
what entertainment it could in the world. He preserved little, 
and the compiler is indebted to friends in various parts of the 
country for copies of some of the most famous papers in this 
volume. He is under obligations peculiarly heavy to Hon. Levi 
Maisli, of York, Pennsylvania, for favors of this kind. 

The open letters to Vice-President Wilson on the character of 
Edwin M. Stanton, the letter to Mr. Adams on the character of 
Willian\ H. Seward, and the article entitled ''A Great Lawsuit and 
a Field Fight," arc taken from the "Galaxy" magazine. The 
replies to Mr. Ingersoll, Mr. Boutwell, and Mr. Howe, and the 
article entitled "The Great Fraud," are copied from the "North 
American Review," in which they originally appeared. 

The compiler regrets that he is unable to present the great 
speech in the McCardle case. The original report of this speech 
was so defective that Judge Black repudiated it altogether, and 
had dictated about two thirds of a revised report, when the work 
was suspended and never resumed. It would be obviously unfair 
to offer the reader either the discarded newsj^aper report, or the 
incomplete revise, and so the speech has been wholly omitted, great 
and celebrated as it was. 

Except in one instance, the compiler has not encumbered the 
following pages with notes of any description. It will be found 
that each speech and essay will itself contain a sufficient explana- 
tion of the circumstances under which it was spoken or written. 



iv COMPILERS NOTE. 

There has been for many years a steadily increasing demand for 
the republication of these papers in some appropriate and permanent 
form ; and if this volume shall meet the wants of the many persons 
whose individual requests for separate copies the family and friends 
of Judge Black have been unable to honor, the object of the com- 
piler will have been accomplished. 

Chauxcey F. Black. 

Beockie, January^ 1S85. 



COI^TEI^TS. 



PAGS 

Biographical Sketch 1 



MISCELLANEOUS. 

Address delivered before the Agricultural Society of Somerset County, at its Annual 

Exhibition, October 6, 1854 34 

" Religious Liberty." — An Address to the Phrenakosmian Society of Pennsylvania 

College, delivered at the Annual Commencement, September 17, 1856 . . 51 

" Political Preaching." — Reply to Dr. Nevin 67 

Answer to Ingersoll >jq 

Legislative Oath.— Constitutional Convention, March 10, 1873 .... 96 

A Great Lawsuit and a Field Fight • . 109 

The Character of Mr. Seward.— Reply to C. F. Adams, Sr 134 

Speech at the Celebration of the Centenary of Grattan's Declaration of Irish Inde- 
pendence, under the Auspices of the Irish National Land League, of Maryland, 
at Concordia Opera-House, Baltimore, April 18, 1882 158 

Railroad Monopoly.— Argument to the Judiciary Committee of the Senate of Penn- 
sylvania JY2 

EULOGIES. 

On the Life and Character of General Andrew Jackson.— Delivered at Bedford, Penn- 
sylvania, July 28, 1845 jgg 

On the Death of Judge Gibson 205 

On the Death of Senator Carpenter 209 

POLITICAL ESSAYS AND LETTERS. 
Observations on Territorial Sovereignty.— Replies to Senator Douglas . . .212 

Letter to Judge Hoar 242 

Letters to Henry Wilson 245 



VI 



CONTENTS. 



Open Letter to General Garfield 292 

The Great Fraud 312 

Letter to Mr. Stougbton 340 

The Third Term : Reasons against it 366 

General Grant and Strong Government 389 

The Electoral Vote of Louisiana 407 



FORENSIC. 

Ableman vs. Booth. — The United States vs. Booth . 

"Fossatt vs. the United States (Rancho de los Capitancillos) 

Peirce vs. the United States (Floyd Acceptances) 

Providence Rubber Company vs. Goodyear's Executor ct al. . 

In Defense of the Right to Trial by Jury. — Ex-parte Milligan 

United States vs. Blyew ct al. (Civil Rights Bill) 

State of Missouri ex rel. Frank J. Bowman vs. E. A. Lewis ct al., Judge 
Court of Appeals 

The McGarrahan Claim 

Federal Jurisdiction in the Territories. — Right of Local Self-government 

The South Carolina Case 



sSt. 



Louis 



417 
430 
470 
488 
510 
539 

557 
565 
595 
616 



BIOGRAPHICAL SKETCH. 



" good gray head, which all men knew ; 
iron nerve, to true occasion true ; 
fallen at length, that tower of strength, 
Which stood four-square to every wind that blew ! " 



This sketch will give the reader little more than an outline ot the 
life of Judge Black. If it puts him in possession of a few dates, 
and the real nature of a few important transactions in which he took 
part, together with a very limited conception of his general work and 
personal character, the modest purpose of the writer will have been 
attained. Out of the rich and abundant materials which remain, it is 
believed that an extremely useful and interesting book of biography 
may, at a later period, be made. But it will require much time to" 
collect, arrange, and illustrate the records of a life so busy and the 
various produce of a pen so active as his. Nothing can, therefore, be 
said of it at present, except that it will in the proper season be con- 
scientiously done, though in other respects it will doubtless be wholly 
unworthy of the subject. 

Jeremiah Sullivan Black was born at his father's homestead, 
a place called Pleasant Glades, in Stony Creek Townshij), Somerset 
County, Pennsylvania, January 10, 1810. It is situated on the Bed- 
ford turnpike, seven miles from Somerset, the county town, in the 
lofty basin between the main range of the Alleghanies and the Laurel 
Ridge, two thousand feet above the level of the sea.* There are the 

* " It is not a valley quite, nor basin, but is slightly curved or cupped from crest 
to crest of the twin highlands, where they interlock and lift the intervale almost to 
a level with their summits." — Dr. Wllliam Elder, in " General Offle," " Periscopics,^^ 
p. 15. 



2 BIOGRAPHICAL SKETCH. 

graves of his ancestors,* for two generations, in a picturesque burial- 
ground, visible from the famous thoroughfare, once thronged with 
flying stages and great canvas-coyered freight- wagons, but now almost 
as desolate as the loneliest glens of the neighboring mountain. 

His grandfather, James Black, had been a man of considerable 
landed property and some consequence in that community. He was 
a farmer, a justice of the peace, and a local public character of more 
than ordinary influence. His father, Henry Black, heir to the home- 
stead, was justice of the peace, associate judge of the county for 
twenty years, member of the General Assembly, and representative in 
Congress. He died in 1841 — the year before his son was appointed 
president judge of the courts in which he himself had so long sat as 
an associate — widely regretted by the public whom he had served 
honorably at a time when public employment implied public con- 
fidence. 

The lad went to the schools of the neighborhood — of which his 
conversation through life was full of racy anecdotes — in the country, 
at the villages of Stoystown, Berlin, and Somerset, and finally to a 
classical school at Brownsville, Fayette County, where his education 
at the hands of regular masters came to an end. Thenceforth he 
governed his own studies, but he governed them with a sober judg- 
ment, though he pursued them with a keen spirit. Mental labor was 
almost no labor to him. On one occasion, when his father was taking 
leave of his family upon the eve of his departure for some distant 
place, he asked each person in turn what he should bring him or her 
from the great town. Young Jere was slow to answer, as if his re- 

* Judge Black's ancestors were Scotch-Irish and German. The Blacks of that ilk 
came from Ireland, and settled in that part of York County which has since been set 
apart to Adams, where James Black, grandfather of Judge Black, married Jane 
McDonough. 

Judge Black's mother was Mary Sullivan, born at York, August 16, 1780. Her 
father, Patrick Sullivan, was born in Ireland on St. Patrick's day, 1754, came to this 
country at fifteen years of age, served as a captain in the War of Independence, and, 
coming to York on some military duty, married Barbara Bowser, a person of pure Ger- 
man blood. They removed to Elk Lick Township, Somerset County, where Captain Sul- 
livan had a comfortable estate in lands, called in the patent " Rural Felicity." He was 
a stern Federalist, was rather conspicuous in local politics, and for some years repre- 
sented that district in the Legislature. As a child Judge Black spent much time with 
these grandparents at " Rural Felicity," which, although he never owned a foot of it, 
and it has long since passed out of the family, is now most frequently described as 
the " Judge Black farm." 



BIOGRAPHICAL SKETCH. 3 

quest was almost too great a one to be preferred, but finally said, 
"Father, I wish you would bring me Shakespeare's plays." "Ah, 
Jere," said the father, " I fear you have had plays enough. Hadn't 
I better bring you some ivorTcs 9 " This reply was not intended as a 
rebuke to the boy for any supposed aversion to manual labor, but was 
merely a witty expression of his own opinion of the ease and pleasure 
with which the young student had mastered the books he already 
had. 

The boy was especially fond of the Latin classics, and at fifteen 
or thereabout was a clever Horatian. He had committed the text 
verbatim ; had translated it into English prose ; and had then turned 
the whole into English verse of his own. To the day of his death he 
remembered literally all three — the Latin, the English prose, and the 
English verse — though neither had ever been written ; and he amused 
many a leisure moment by comparing his childish version with the 
numerous published translations of his favorite. This, however, was, 
as his father intimated, but the play of a still undisciplined but ex- 
traordinarily vigorous intellect. He pursued with even greater assidu- 
ity the studies for which he had less taste, and in which he then felt 
the greatest dread of finding himself deficient when he should come 
to that man's work of making an honest living, which he knew, from 
his father's circumstances, he must soon take up. He subjected every 
learned man, priest or layman, who came his way, to a catechism of 
his own devising, and thus cleared up the doubts and diflBculties 
which occasionally arose in the course of his self-guided studies. It 
is not, therefore, surprising that when, at the age of seventeen, he 
rode to the county town on horseback, with his father, and was en- 
tered a student of law in the office of Chauncey Forward, he was 
found a fair scholar, well equipped for the profession. But, as the 
Shakespeare incident above goes to show, his attention had not been 
confined to school-books. His serious mind, with its mighty and 
eager grasp, seized and assimilated everything within reach. He had 
read every book in his father's house — and that was a store by no 
means inconsiderable for the time and place — and also every one that 
could be fished from the shelves and closets of the better furnished 
house of his grandfather, Patrick Sullivan, in Elk Lick Township, 
where in childhood and boyhood he had frequently spent many weeks 
at a time. While a student at Somerset he acquired French enough 
to read and write it with some facility, from a Frenchman who taught 



4 BIOGRAPHICAL SKETCH. 

in that and the neighboring counties, as he happened to be favored 
with a class.* 

Mr. Forward f was then in the prime of his life, and was highly 
distinguished both at the bar and in public life. He was the unques- 
tioned leader of the Democratic party, as Mr. Charles Ogle was of the 
Whig or Anti-Masonic party. The student was deeply impressed by 
the remarkable qualities of these great men, and became profoundly 
interested in the political questions over which they contended. He 
soon contributed his share to the discussion in the form of articles in 
the local newspapers, which attracted attention, and first revealed to 
Mr. Forward the fact that his somewhat rustic-appearing student 
from Stony Creek was a person to be respectfully considered. Al- 
though Judge Black, the elder, was a Whig, his son became a Demo- 
crat, and, from that good hour to his last on earth, defended with all 
the fervor of strong conviction and passionate attachment the prin- 
ciples he then intelligently espoused. 

The student was at first somewhat staggered by the mass of learn- 
ing pertaining to the science he had undertaken to acquire, and he 
shrank modestly from what appeared to him an almost impossible 
labor. But when he had mastered a few governing principles, every- 
thing fell into order in his orderly mind, and the rapidity of his 
mental conquests in this new domain were most astonishing, and par- 
ticularly so to himself. Mr. Forward was more than gratified. His 
student had not only excited his admiration, but had won his resj)ect 
and confidence in such measure that he brought him to the bar 
before he was of age, and, having himself been elected to Congress, 
immediately "advertised " his large business into the hands of young 
Mr. Black. The latter was soon after appointed Deputy Attorney- 
General for the county of Somerset, and found himself on one side or 
the other of every case in the several courts. His fame and practice 
extended rapidly, and rested upon the sure foundation, not of genius 
merely, or of the capacity for oratorical display, but of personal prob- 
ity, conscientious devotion to the interests of clients, and that com- 
prehensive and scientific knowledge of the law which, in the consider- 

* After he became Attorney-General, he learned enough Spanish to enable him to 
understand and expound, though not critically, the Spanish and Mexican laws and legal 
documents relating to California land-grants. 

f Jeremiah S. Black and Mary Forward, eldest daughter of Chauncey Forward, were 
married March 23, 1 836. She survives him. 



BIOGRAPHICAL SKETCH. 5 

ate judgment of liis professional brethren, gives him historical rank 
beside the illustrious Gibson.* When, therefore, Mr. Forward re- 
turned to the bar, he encountered Mr. Black, among others, at the 
head of it. He continued to practice, with success, in Somerset, 
Cambria, Bedford, and Blair, until 1842, when, at thirty-two years 
of age, he was appointed President Judge of the Sixteenth Judicial 
District. \ 

Judge Black while at the bar had not been much of a politician. 
He had given his mind to literature and law, and if he was profound 
in learning he was also masterly in exposition. He was not fond of 
the stump. He had no taste, as he always insisted he had no talent, 
for that kind of speaking. But he was a vigorous writer on po- 
litical subjects, and his pen was much in the service of his party. 
He did also occasionally overcome his repugnance to popular exhorta- 
tions, and address political meetings in the counties in which he 
practiced, when he invariably raised his reputation by the clearness, 
solidity, and dignity of his arguments, confined to the principles in 
dispute, and relieved only by some bit of quaint humor or curious 
illustration out of some unfamiliar book. As already said, however, 
he was a Democrat of the straitest sect, a disciple of Jefferson, 
and a most unflinching and aggressive friend of Jackson. It is 
not surprising that such a man should have been greatly aroused 
by the fierce and bitter struggle which resulted in the election of 

*"When I came here in 1838 there were five gentlemen, practicing members of the 
bar, all of whom have since made their marks upon the history of the country. . , . They 
were Chauncey Forward, Charles Ogle, Moses Hampton, Joshua F. Cox, and Jeremiah S. 
Black. I name them in the order in which they were admitted to this bar, and not with 
any view of preference for either or any of them, for, if I did, I certainly would not 
name Judge Black last, for as a lawyer he attained higher honors than any of them. 
Chauncey Forward was a great lawyer, a man ' cunning of fence,' and a wily antago- 
nist ; so was Ogle ; so was Hampton ; Cox was a combative man ; but Judge Black 
devoted himself to the acquisition of a scientific knowledge of the law. He studied it as 
a science, more than any of them, and as such a lawyer he rose to the acknowledged head 
of the American bar." — Hon. John R. Edie, Address at the Somerset Bar Meeting. 

f He succeeded the Hon. Alexander Thomson, for whose character as a man and 
a judge he entertained the most profound reverence. Shortly before his death he 
declared to the writer his resolution to put in some appropriate form, for the benefit 
of posterity, his high estimate of Judge Thomson. The latter presided in the courts of 
the district from 1831 to 1842. He was the father of Frank Thomson, Esq., Vice- 
President of the Pennsylvania Railroad Company, and of Dr. William Thomson, of 
Philadelphia. 



6 BIOGRAPHICAL SKETCH. 

David R. Porter in 1838. He entered into that contest with pen and 
voice, and they were a pen and a voice which told all the more because 
they were not hackneyed. This circumstance may have been remem- 
bered when the Governor, unable to make a satisfactory selection 
among the contending candidates for judge, selected him as the safest 
deliverance from a troublesome and politically dangerous contention. 
His judicial conduct speedily vindicated the choice of the Governor, 
and carried the fame of the young judge far beyond the confines of 
his long, mountain district, which he loved to ride on the back of the 
most spirited horse he could find. With the exception of an address 
delivered at Bedford on the death of General Jackson, and an address 
entitled *' Patriotism" before the literary societies of Washington 
College, Judge Black, during this period of ten years, confined him- 
self strictly to the duties of the bench. But he was recognized — 
notably so after the Jackson address — as one of the foremost men in 
the State on the Democratic side, and was more or less discussed as a 
candidate for Governor, for Senator in Congress, and for Judge of the 
Supreme Court. 

In 1851 a full bench of justices of the Supreme Court of Pennsyl- 
vania was chosen under the constitutional amendment of 1850 mak- 
ing the judiciary elective. Judge Black was nominated by the Demo- 
cratic State Convention, and, receiving a larger number of votes than 
any candidate on the ticket, was elected, with Gibson, Lewis, Lowrie, 
and Coulter. All of these were Democrats except Coulter, and all of 
them were men who adorned the bench to which they were then ele- 
vated. In the lottery which determined the matter for that first 
bench of judges chosen by the people at the polls, Judge Black drew 
the short term and became Chief-Justice. In 1854, his term as Chief- 
Justice having expired, he was elected an Associate Justice by a very 
large majority, although the head of his ticket, the Democratic can- 
didate for Governor, was defeated. Of the work of the court, of his 
numerous opinions from fourth Harris to fifth Casey, and of the deep 
impression he left upon the jurisprudence of the State, this hasty 
sketch is not the place to speak.* 

* He studied law, and soon became a judge, and, until he made his appearance in 
this city as a Cabinet minister in 1857, his attainments aa^ abilities were mainly exhib- 
ited in high judicial stations. For fifteen years he admini^red justice according to law 
in his native State of Pennsylvania, and in the reports of his opinions in cases decided 
during that period will be found splendid and abundant evidence of his enlightened 



BIOGRAPHICAL SKETCH. Y 

f Mr. Buchanan's election to tlie presidency in 1856 was an event 
of great moment to the politicians of his native State. Judge Black 
had, from the time Mr. Buchanan was first seriously named for that 
great place, earnestly favored his pretensions, but he was able to 
assist in his elevation only by the quiet personal influence of a judge 
removed from partisan politics. He had no claims upon the Presi- 
dent-elect. He knew that his name had been under consideration for 
a place in the Cabinet, but he supposed it had been finally dismissed, 
and he had taken passage for a brief vacation in Europe, when — again 
as a compromise between contending factions — he was, on the 7th 

wisdom, his learning in the law, his lofty and sound morality, all conveyed with a felicity 
of language and eloquence of expression that may even here in this court-room be 
declared to be unsurpassed. 

When in 1852 he pronounced from the Supreme Bench of Pennsylvania that mas- 
terly eulogium upon the illustrious Gibson, how many then felt and how many more feel 
now that he was unconsciously describing his own marvelous gifts and admirable quali- 
ties ! — Senator Bayard, of Delaware. 

It has been said, in reproach of Pennsylvania, that her two greatest citizens were 
Albert Gallatin, of Switzerland, and Benjamin Franklin, of Massachusetts. But in a 
comparison of jurists the Commonwealth of Pennsylvania can boastfully point to Gibson 
and Black, and ask the entire nation to produce their peers, I do not propose to analyze 
Judge Black's judicial character, nor to present a catalogue of his legal opinions. 
Every English-speaking lawyer knows how much he has contributed to the purity and 
power and nobleness of our jurisprudence. He has erected his own immortal monu- 
ment, and in every forum is his cenotaph cherished and honored by the profession he 
loved and adorned. — Hon. James II. Hopkins, of Pennsylvania. 

To this generous store of knowledge he added fluency of speech, both in public 
address and private conversation, and a style of writing which was at once unique, pow- 
erful, and attractive. He had attained unto every excellence of mental discipline de- 
scribed by Lord Bacon. Reading had made him a full man, talking a ready man, 
writing an exact man. The judicial literature of the English tongue may be searched 
in vain for finer models than are found in the opinions of Judge Black when he sat, 
and was worthy to sit, as the associate of John Bannister Gibson on the Supreme 
Bench of Pennsylvania. — " Twenty Years of Congress,^'' by James G. Blaine. 

To the expression by Judge Black respecting Gibson — " The State can have no bet- 
ter thing to be proud of than such a character; in all her store she has no richer 
jewel to display than the fame of such a son " — we can add, she has now another jewel 
equally rich, and she displays them together with equal pride. It would be a most 
acceptable service to the profession were such an essay as that on Gibson by Porter 
prepared respecting Black, devoted mainly to his work upon the bench and at the bar. 
It would be a fitting accompaniment, and the two should be bound together and placed 
in every law library of the State. — T. J. Keenan, Esq., Pittsburg, Pennsylvania. 



8 BIOGRAPHICAL SKETCH. 

of March, 1857, unexpectedly summoned to the post of Attorney-[ 
General. 

1 Although that was a Cabinet as comj^letely dominated by the per- 
sonality of the President as any in the previous history of the coun- 
try, not excepting Jefferson's and hardly excepting Jackson's, Judge 
Black at once became a conspicuous figure. His influence with the 
President, derived, not as has been generally supposed from close per- 
sonal relations in private life, but from pure force of the intellect and 
character of the Attorney-General, soon became very great, and re- 
mained, perhaps, stronger than that of any other member to the end. 
The heads of the other departments signified their confidence in the 
Attorney-General by the number of opinions they required from him, 
and the nature of the business they referred to him. 
1 But the most extraordinary draft upoii the office during his in- 
cumbency was the management of that class of cases, monstrous alike 
in their number, magnitude, and character, known as '' California land 
claims." After the conquest, alleged Mexican grants were presented 
to the Board of Land Commissioners covering 19,148 square miles ! 
Nearly all of them were confirmed by the board before the system of 
fraud had been discovered or even suspected. Most of them passed 
securely through the United States District Court, but were finally 
exposed and defeated in the Supreme Court. The value of the prop- 
erty, public and private, covered by these forged titles was estimated 
at 1150,000,000. The best part of San Francisco was involved in no 
less than five fraudulent claims ; and Sacramento, Stockton, Marys- 
ville, and Petaluma were all claimed under false grants, forged after 
the American occupation. Almost every site upon which the United 
States subsequently erected its public buildings, forts, and arsenals, was 
similarly assailed. But the Attorney-General organized a system of 
thorough investigation ; the methods of the forgers were ascertained ; 
a table of professional perjurers was constructed ; and one after another 
the forged claims were stricken down. The amount of property thus 
saved to the United States and to innocent settlers and purchasers 
aggregated hundreds of millions of dollars. It was the most tremen- 
dous professional labor and the most complete professional success 
on record in this or any country. It occupied the three and a half 
years of Judge Black's term as Attorney-General, and, if it earned 
him the enduring hostility of the many and powerful conspirators, 
baffled by his firmness and vigilance, it was one of the most honora- 



BIOGRAPHICAL SKETCH. 9 

ble and, to himself, one of the most satisfactory of his many public 1 
services. 

The last months of Mr. Buchanan's administration constitute the 
most important period of equal length in American history, the first 
months of Mr. Lincoln's not excepted. It has hitherto been explored 
mainly for materials upon which to accuse and malign the party then 
in power. It has been covered by only two books with any sort of 
pretensions to historical accuracy or historical candor.* This com- 
piler proposes to deal with it fully and fairly in a future publication. 
For the present the following summary (but, as far as it goes, authen- 
tic) narrative will serve to show Judge Black's relations to those mo- 
mentous events which immediately preceded the actual opening of 
the great civil war. f 

"The executive administration was still nominally in the hands of 
the Democrats ; but the power of the President was limited by law, 
and his moral influence had ceased with the rout of his party. In 
the most pressing exigency of the nation's history, he could not get 
a collector of customs at the port of Charleston confirmed by the Sen- 
ate, although it seemed- perfectly clear then that the initial struggle 
for the Union would take place in that harbor. All eyes were turned 
toward the rising sun. Mr. Lincoln's policy was as yet a profound 
mystery. It was not until he began his journey to Washington that 
he let fall any intimations which might help the country to a con- 
clusion concerning his opinions. But when he did speak he left no 
room for doubt. It was clear that he thought a peaceful solution of 
the difficulties not only possible but supremely desirable ; and the 
employment of force, or even the suggestion of it, by his predecessor 
in office would disconcert his plans and disappoint his hopes. To the 
same purpose spoke the principal newspaper organ of his party at 
New York, and the principal organ of his Secretary of State at 
Albany. There was nothing to indicate that he would pursue a more 
warlike policy than Mr. Buchanan, or that he desired his partisans in 
Congress to arm the President with the powers which Mr. Buchanan 
implored them to give him. 

" When Congress met, on the 3d of December, it confirmed by its 
conduct the existing impression. It acted upon none of the Presi- 

* " Buchanan's Defense," and Curtis's " Life of James Buchanan." 
f From a paper prepared and published by the compiler in 1874. 



10 BIOGRAPHICAL SKETCH. 

dent's recommendations, and smothered indiscriminately every meas- 
ure that looked either to coercion or defense. Mr. Howard's bill to 
call out the militia, Mr. Stanton's bill for the j^rotection and recov- 
ery of the forts, and the bill to provide for the collection of duties, 
were all alike imi^artially killed and buried. Nor can the omission 
be charged to the account of oversight. It was a deliberate refusal, 
upon full information, to give the President the power required to 
meet the rebellion. It was universally admitted that he had no au- 
thority under the act of 1795 to call out the militia. It was never 
intimated that he could of his own will increase the regular army or 
navy, or that he might execute the laws by military force, without 
the intervention of judges and marshals. And if he had hinted his 
intention to usurj) these powers, or any others which did not legally 
belong to him, there is no reason to doubt that he would have been 
impeached within twenty-four hours. 

''It will be seen as the history develops that Mr. Buchanan, acting 
under the paramount influence of General Scott and Major Anderson, 
was betrayed into some- grave errors with regard to Sumter ; but as to 
the constitutional right of the Government to reduce a revolt of any 
size or kind, his opinions were thoroughly orthodox, and shared by 
nine tenths of his countrymen. The Union, he held, was necessarily 
perpetual. No State could lawfully withdraw or be lawfully expelled 
from it. The Federal Constitution was as much a part of the ' Con- 
stitution of every State as if it had been textually inserted therein.' 
The Federal Government was sovereign within its own sphere, and 
'acted directly upon the individual citizens of every State.' With- 
in these limits its coercive power was ample to defend itself, its laws, 
and its property. It could suppress insurrections, fight battles, con- 
quer armies, disperse hostile combinations, and punish any or all of 
its enemies. It could meet, repel, and subdue all those who rose 
against it ; but it could not obliterate a single Commonwealth from 
the map of the Union, or declare indiscriminate war against all the 
inhabitants of a section, confounding the innocent with the guilty, 
and rushing down in one mighty havoc upon friend and foe alike. 
Such was the opinion of the Attorney-General, and we shall presently 
see how that officer interpreted his own doctrines as the conflict deep- 
ened and new exigencies arose. The President adopted these views 
and embodied them in his annual message, but warned Congress that 
if the rising insurrection was to be met by force, the law as it stood 



BIOGRAPHICAL SKETCH. \\ 

was fatally defective. The acts of 1795 and 1807 were wholly inade- 
quate to the present occasion. They required the President to act in 
concert with the marshal and a civil 'posse comitatus; but in this case 
—in South Carolina — the marshal, the judges, all the public officers, 
and all the peojile were on one side, and that the wrong one. With 
Congress rested the whole responsibility of peace or war, and with 
Congress the message left it. 

" The original draft of this message had received the approval of 
every member of the Cabinet except Mr. Cobb, Mr. Thompson, and 
Mr. Cass. The two former, of course, objected strongly to that part 
of it which denied the right of secession. Mr. Cass impressively de- 
manded that the right of Congress to make war against a State should 
be denied in more forcible terms than the President had used. It 
was so modified solely to meet his views ; but the venerable Secretary 
was so deeply affected by the prospect of a bloody collision between 
the States that he expressed his feelings in a burst of tears. Mr. 
Floyd was loud and vehement on the side of the Union, and went as 
far as the farthest in support of the President's views. 

" On the 28th of December three gentlemen, styling themselves 
'Commissioners of South Carolina,' sent a communication to the 
President offering to exhibit their credentials and proposing to treat 
with * the Government of the United States' about sundry questions 
of debt and property. But after their departure from home the 
"whole aspect of affairs had been changed by an important event. 
Major Anderson, the Federal commander in Charleston Harbor, had 
in pursuance of a plain order removed his little force from Fort Moul- 
trie to Fort Sumter, and the commissioners threatened to ' suspend 
all discussion ' while in the very act of opening it until Major Ander- 
son's proceedings should be satisfactorily explained. 

" Since the meeting of Congress the President's Cabinet had been 
materially changed. Mr. Cobb and Mr. Cass had gone out, the for- 
mer because he disapproved the annual message, and the latter because 
the force in Charleston Harbor had not been increased. The vacan- 
cies were filled by the appointment of the Attorney-General, Jeremiah 
S. Black, Secretary of State ; of Edwin M. Stanton, Attorney-Gen- 
eral ; and Philip F. Thomas, of Maryland, Secretary of the Treasury. 
Mr. Thompson's retirement from the Interior was simply a question 
of time. 

*' From the evening of the 37th to the morning of the 31st— three 
2 



12 BIOGRAPHICAL SKETCH. 

days and four nights — the removal of Anderson and the answer to the 
commissioners were under discussion. The commissioners had ar- 
rived on the 26th, and news of Anderson's removal was received on 
the morning of the 27th. That morning, when the Cabinet assem- 
bled and the startling news from Charleston was announced, the Sec- 
retary of State expressed his strong approbation of Anderson's move- 
ment, and asserted that it was in perfect accordance with his orders. 
It happened that nobody else recollected the precise terms of those 
orders ; the Secretary of War denied that they contained anything 
which could justify the removal, and the President was inclined to 
agree with him upon the question of fact. The orders were sent for 
and read, and it was found that the instructions were explicit and 
clear to remove into any fort in the harbor which would increase 
Major Anderson's means of resistance, as soon as he had * tangible 
evidence of a design to attack' him. Some discussion on the tangi- 
bility of the evidence ensued, but this was soon settled, for the words 
could mean nothing unless they meant that he should move whenever 
he had a well-grounded apprehension that an assault would be made, 
and he was left to judge of that for himself. The President could 
not choose but support the officer who had in apparent good faith 
obeyed the instructions upon which he was bound to act. Mr. Floyd 
then insisted with much earnestness that the troops should be entirely 
withdrawn from all the forts in Charleston Harbor, and he put his 
proposition in writing, but it received no support from any of his 
colleagues and no countenance from the President. The President 
thought, as he afterward said, that the tone in which Mr. Floyd read 
the paper was loud and discourteous, but at the time he rebuked it 
only with that quiet dignity under which the courage of many a 
stronger man had wilted before. 

" Mr. Floyd's views or wishes on this or any subject had for some 
time before ceased to have the slightest influence on the minds of the 
President and the other members of the Administration. He was 
bold, brilliant, and true-hearted to his friends, but his political prin- 
ciples hung loosely upon him, and he was entirely incapable of man- 
aging pecuniary affairs. His private business was always in con- 
fusion, and that of the War Department was soon brought to a simi- 
lar condition. His colleagues bore his shortcomings impatiently, and 
the President was vexed and distressed with complaints of maladmin- 
istration. Mr. Buchanan's wrath was thoroughly aroused when he 



BIOGRAPHICAL SKETCH. 13 

heard of the Secretary's assent to the payment of a large claim in the 
face of the Attorney-General's opinion that it was unjust and illegal. 
By his stern command the money was stojjped before it reached the 
hands of the claimant. When he discovered that Mr. Floyd had 
accepted heavy bills drawn by contractors long in advance of their 
earnings, he sent the Vice-President, Mr. Breckinridge, to him with 
a request that he would resign, couched in terms which made him 
clearly understand that he would be removed if he did not. 

** This happened on the 23d of December, and from that time Mr. 
Floyd was regarded as virtually out of office. Until then he was an 
outspoken opponent of secession, and when he came uninvited to the 
Cabinet meetings of the 27th and took the side of the secessionists 
on the question under discussion, it was plainly seen that his object 
was to make an issue on which he could resign, without reference to 
the real cause. He did, in fact, resign immediately afterward, and 
gave as a reason the difference between him and the President about 
the treatment of South Carolina. It was a cunning and well-managed 
manoeuvre, and some of his colleagues, who liked him personally, 
were willing to see it succeed. The President was induced with some 
difficulty to accept the resignation without commentary, but three 
days later a criminal prosecution was ordered against him for malver- 
sation in office and a conspiracy to defraud the United States, based 
on his transactions with the contractors already referred to. An in- 
dictment was found, but it was never tried, because he had testified 
on the whole subject before a committee of the House of Representa- 
tives, and there was an act of Congress which forbade that any person 
should be ' held to answer criminally in any court of justice for any 
act or fact ' concerning which he had so testified.. It is impossible to 
say what would have been the result of a trial. There is no evidence 
against him of anything worse than reckless imprudence ; not a cent 
from any money proceeding from these premature acceptances could 
be traced to his hands ; and it is very clear that he had no connection 
whatever, in thought, word, or deed, with the abstraction of the In- 
dian trust bonds from the Interior Department. He left Washington 
empty-handed — so poor that he had to borrow the money which paid 
the expenses of taking his family to Virginia. 

"Late in the evening of Saturday, the 29th of December, the Presi- 
dent laid before the Cabinet the result of his own reflections in the 
form of an answer to the South Carolina commissioners. It was such 



li BIOGRAPHICAL SKETCH. 

a paper as none of them expected to see. One member only approved 
the document and five opposed it, but opposed it for different reasons. 
Messrs. Black, Holt, and Stanton objected that it conceded too much 
to the contumacious State ; and Messrs. Thomas and Thompson 
thought its whole tone was so hostile to the claim of South Carolina 
that it would make the immediate outbreak of civil war inevitable. 
Mr. Toucey was fully with the President. Not much criticism was 
bestowed on the document at the time. The members all thought 
that further discussion would be useless ; in their past experience they 
had seen how inflexible were Mr. Buchanan's resolutions when once 
formed. Each was left to decide for himself what his duty required 
him to do. It seemed certain that the Cabinet was about to explode 
and fly off in opposite directions. 

'' On the next morning, Sunday, the 30th, Mr. Black communicated 
to Messrs. Stanton, Holt, and Toucey his conviction that the Presi- 
dent's mind was fixed beyond all hope of change, and his own deter- 
mination to resign in consequence. Mr. Toucey told the President, 
and Mr. Black was sent for. He went reluctantly, dreading the 
effect upon his own feelings of the appeal which he knew Mr. Bu- 
chanan would make to the sacred friendship which had lasted through 
so many years of prosperity, and which certainly ought not to be 
broken in that hour of trouble and adversity. What was said between 
them during that interview need not be told, but it ended in the offer 
of the President to let Mr. Black take the document in question, 
strike out what he thought objectionable, and insert what was neces- 
sary to make it meet his own views ; but this must be done imme- 
diately. Mr. Black went to the Attorney-Generars office, and there 
wrote the following paper, which Mr. Stanton copied as rapidly a& 
tho sheets were thrown to him : 

*' ''Memorandum for tlie President on the subject of the paper drawn 
up by him in reply to the Commissioners of South Carolina. 

" ' 1. The first and the concluding paragraph both seem to acknowl- 
edge the right of South Carolina to be represented near this Govern- 
ment by diplomatic officers. That implies that she is an independent 
nation, with no other relations to the Government of the Union than 
any other foreign power. If such be the fact, then she has acquired 
all the rights, powers, and responsibilities of a separate government 
by the mere ordinance of secession which passed her convention a few 
days ago. But the President has always, and particularly in his late 



BIOGRAPHICAL SKETCH. 15 

message to Congress, denied the right of secession, and asserted that 
no State could throw off her Federal obligations in that way. More- 
over, the President has also very distinctly declared that even if a State 
could secede and go out of the Union at pleasure, whether by revolu- 
tion or in the exercise of a constitutional right, he could not recog- 
nize her independence without being guilty of usurpation. I think, 
therefore, that every word and sentence which implies that South Caro- 
lina is in an attitude which enables the President to " treat" or nego- 
tiate with her, or to receive her commissioners in the character of dip- 
lomatic ministers or agents, ought to be stricken out and an explicit 
declaration substituted, which would reassert the principles of the 
message. It is surely not enough that the words of the message be 
transcribed if the doctrine there announced be practically abandoned 
by carrying on a negotiation. 

" ' 2. I would strike out all expressions of regret that the commis- 
sioners are unwilling to proceed with the negotiations, since it is very 
clear that there can be no negotiation with them, whether they are 
willing or not. 

" ' 3. Above all things, it is objectionable to intimate a willingness 
to negotiate with the State of South Carolina al)out the possession of 
a military post which belongs to the United States, or to propose any 
adjustment of the subject or any arrangement about it. The forts in 
Charleston Harbor belong to this Government — are its own, and can 
not be given up. It is true they might be surrendered to a superior 
force, whether that force be in the service of a seceding State or a for- 
eign nation. But Fort Sumter is impregnable and can not be taken 
if defended as it should be. It is a thing of the last importance that 
it should be maintained if all the power of this nation can do it ; for 
the command of the harbor and the President's ability to execute the 
revenue laws may depend on it. 

*' * 4. Tlie words **^ coercing a State by force of arms to remain in 
the confederacy — a power which I do not believe the Constitution has 
conferred on Congress," ought certainly not be retained. They are too 
vague, and might have the effect (which I am sure the President does 
not intend) to mislead the commissioners concerning his sentiments. 
The power to defend the public property — to resist an assailing force 
which unlawfully attempts to drive out the troops of the United States 
from one of the fortifications, and to use military and naval forces for 
the purpose of aiding the proper officers of the United States in the 
execution of the laws — this, as far as it goes, is coercion, and may very 
well be called ''coercing a State by force of arms to remain in the 
Union." The President has always asserted his right of coercion to 
that extent. He merely denies the right of Congress to make offensive 
war upon a State of the Union as such might be made upon a foreign 
government. 



16 BIOGRAPHICAL SKETCH. 

'•' ' 5. The implied assent of the President to the accusation which 
the commissioners make of a compact with South Carolina by which 
he was bound not to take whatever measures he saw fit for tlie defense 
of the forts, ought to be stricken out, and a flat denial of any such 
bargain, pledge, or agreement inserted. The paper signed by the late 
members of Congress from South Carolina does not bear any such con- 
struction, and this, as I understand, is the only transaction between 
South Carolina and him which bears upon the subject either directly 
or indirectly. I think it deeply concerns the President's reputation 
that he should contradict this statement, since if it be undenied it 
puts him in the attitude of an executive officer who voluntarily dis- 
arms himself of the power to perform his duty, and ties up his hands 
so that he can not, without breaking his word, ''preserve, protect, and 
defend the Constitution, and see the laws faithfully executed." The 
fact that he pledged himself in any such way can not be true. The 
commissioners, no doubt, have been so informed. But there must be 
some mistake about it. It arose, doubtless, out of the President's anx- 
ious and laudable desire to avoid civil war, and his often-expressed 
determination not even to furnish an excuse for an outbreak at Charles- 
ton by re-enforcing Major Anderson unless it was absolutely necessary. 

*" 6. The remotest expression of a doubt about Major Anderson's 
perfect propriety of behavior should be carefully avoided. He is not 
merely a gallant and meritorious officer who is entitled to a fair hear- 
ing before he is condemned. He has saved the country, I solemnly 
believe, when its day was darkest and its perils most extreme. He has 
done everything that mortal man could do to repair the fatal error 
which the Administration have committed in not sending down troops 
enough to hold all the forts. He has kept the strongest one. He 
still commands the harbor. We may still execute the laws if we try. 
Besides, there is nothing in the orders which were sent to him by the 
War Department which is in the slightest degree contravened by his 
act of throwing his command into Fort Sumter. Even if those orders 
sent without your knowledge did forbid him to leave a place where 
his men might have perished, and shelter them under a stronger posi- 
tion, we ought all of us to rejoice that he broke such orders. 

" ' 7. The idea that a wrong was committed against South Carolina 
by moving from Fort Moultrie to Fort Sumter ought to be repelled as 
firmly as may be consistent with a proper respect for the high charac- 
ter of the gentlemen who compose the South Carolina Commission. 
It is a strange assumption of right on the part of that State to say 
that our United States troops must remain in the weakest position they 
can find in the harbor. It is not a menace of South Carolina or of 
Charleston, or any menace at all. It is simple self-defense. If South 
Carolina does not attack Major Anderson, no human being will be 
injured ; for there certainly can be no reason to believe that he wiU 



BIOGRAPHICAL SKETCH. 17 

commence hostilities. The apparent objection to his being in Fort 
Sumter is that he will be less likely to fall an easy prey to his assail- 
ants. 

" 'These are the points on which I would advise that the pajDer be 
amended. I am aware that they are too radical to permit much hope 
of their adoption. If they are adopted the whole paper will need to 
be recast. But there is one thing not to be overlooked in this terrible 
crisis. I entreat the President to order the Brooklyn and the Mace- 
donian to Charleston without the least delay, and in the mean time 
send a trusty messenger to Major Anderson to let him know that his 
Government will not desert him. The re-enforcement of troops from 
New York or Old Point Comfort should folloAv immediately. If this 
be done at once all may yet be not well, but comparatively safe. If 
not, I can see nothing before us but disaster and ruin to the country.' 

^' The original of this pajDer went to the President, but Mr. Stan- 
ton's copy was retained by him and by him indorsed ' Observations 
on Correspondence, President S. C. Com., by J. S. B.' Although 
Judge Black took the entire responsibility of it, indited every word 
of it himself, and spoke throughout in the first person singular, it 
undoubtedly embodies the sentiments of Mr. Stanton also. He com- 
mented upon it with strong expressions of delight, and Mr. Ilolt, who 
saw it the same day, equally approved it. Mr. Stanton would have 
resigned with Mr. Black if the views of the latter (which were also 
his own) had not been adopted ; Mr. Holt, perhaps, would have done 
the same, but he did not say so. There never was any talk or sug- 
gestion or tlireat, absolute or conditional, of resignation by any 
Northern member of the Administration other than what is here 
stated. After the transfer of Mr. Holt to the War Department, and 
the resignation of Messrs. Thomas and Thompson, the Cabinet con- 
sisted of Messrs. Black, Dix, Holt, Toucey, Stanton, and King. 
They continued in perfect harmony with each other until the end. 
If any exception to this statement be required, it must be made with 
reference to the arrangement which took place about Fort Pickens. 
General Scott urgently recommended this 'truce,' as he afterward 
called it. Mr. Holt and Mr. Toucey gave it their approbation, and 
Messrs. Black and Stanton opposed it ; the other members gave no 
opinion. The President thought the General-in-Chief was manifestly 
right, but there was very little discussion about it. On the general 
principles which controlled them, and on the details of business, they 
were in perfect accord. 



18 BIOGRAPHICAL SKETCH. 

*''The 'Observations' were the last effort in the single-handed 
struggle of one man to alter a decision which had stood immovable 
against the united assault of himself and two of his colleagues. Un- 
expectedly it succeeded. The President yielded to this earnest appeal 
much that he had previously denied with inflexible firmness — how 
much the reader may ascertain by a comparison of this paper with 
the final answer to the commissioners. Mr. Buchanan had always 
felt in full the deep responsibility which rested upon him. He was 
anxious to avoid a collision which would prevent accommodation, 
hurry the border States out of the Union, and precipitate a civil war 
for which the Government was totally unprepared. But he had never 
for a moment willingly contemplated the surrender of the forts at 
Charleston. On the contrary, he had uniformly declared, before the 
election and after, that if those forts should be given up he would 
' rather die than live.' 

" On the 3d of March, 1861, the Thirty-ninth Congress reached the 
prescribed period of its existence and died a constitutional death. Its 
last session of three months was spent in full view of an awful public 
calamity, which it made no effort to avert or to mitigate. It saw the 
nation compassed round with a frightful danger, but it proposed no 
plan either of conciliation or defense. It adjourned forever, and left 
the law precisely as it found it. 

" Thus the Executive had been left to struggle alone against a 
revolution which the constitutional powers of both the Legislature and 
the Executive would probably have been insufiicient to check. He 
was almost powerless, but none the less resolved to put forth the little 
strength he had. He was solemnly assured by the highest authority 
that South Carolina would not attack any of the forts in Charleston 
Harbor in the circumstances which then existed. But, *to guard 
against surprise,' an expedition as powerful as his limited means 
would afford ' was prepared early in December and held in readiness 
to re-enforce Anderson, and an officer was dispatched to acquaint him 
with the fact and order him to defend himself to the last extremity,' 

"For nearly a month the man-of-war Brooklyn lay at Fortress 
Monroe awaiting the proper moment to take on beard three hundred 
disciplined troops, with provisions and munitions of war, to be thrown 
into Fort Moultrie. At one time it appears the Secretary of "War 
(Floyd) was urgent for sending her off immediately, but was met by 
a professional opinion from General Scott that she ought not to go 



BIOGRAPHICAL SKETCH. Ig 

at all. But on the 30th the President made up his mind to succor 
Anderson at all hazards. The latter had how removed to Sumter, the 
South Carolinians had seized all the unoccupied forts, and there was 
no longer any reason for delay. But again General Scott interposed. 
He did not wish the great steamer with the three hundred veterans to 
be sent from Fortress Monroe, but recommended instead a sloop-of- 
war and cutter with two hundred and fifty raw recruits from New 
York. The President promptly overruled him, and directed the 
Secretaries of War and Navy to dispatch the Brooklyn. The neces- 
sary orders were issued through General Scott, who, instead of trans- 
mitting them to the proper officers, put them into his pocket, and 
called to ' congratulate ' the President on the fact that he had them 
there. But on that day (December 31st) the President had commu- 
nicated his answer to the South Carolina commissioners, and before 
they separated both he and the general came to the conclusion that 
the order to the Brooklyn ought to await the reply of the commis- 
sioners. By the courtly soldier this was considered only 'gentlemanly 
and proper.' 

" The delay for this purpose lasted until the 2d of January, when 
it was discovered that the general, who had acquiesced in the plan of 
sending the Brooklyn, had changed his mind again, and would now 
hear to nothing else but a merchant-vessel and the recruits from New 
York. With great reluctance the President yielded, and the unarmed 
Star of the West was substituted for the armed and powerful Brook- 
lyn. She sailed on the 5th, and while entering the harbor of Charles- 
ton on the 9th was fired at and struck by shot from a battery on Mor- 
ris Island, when she wore round and put to sea again. Intelligence 
of this battery 'among the sand-hills' had been received at Wash- 
ington on the evening of the 5th, but the Star of the West had 
gone, and could neither be warned nor detained. 

'* It was hoped that the mission of the Star of the West would re- 
main a profound secret with the few persons whom necessity or cour- 
tesy required to know it. On the 2d of January — the last day of the 
delay occasioned by waiting for the answer of the South Carolina 
commissioners, which General Scott considered so gentlemanly and 
proper — it was made the subject of a prolonged and heated discussion 
in the Cabinet. It ended in a resolution to send an officer to Major 
Anderson to ascertain whether he wanted or needed re-enforcements. 
Here Judge Black, apprehensive of another delay, interposed a ques- 



20 BIOGRAPHICAL SKETCH. 

tion : * Does tlie sending of a messenger imi^ly that no additional 
troops are to be sent until his return ?' 'Judge Black/ said the 
President, impatiently raising both hands, * it implies nothing.' But 
just at this juncture, while Mr. Holt was writing down the interroga- 
tories to be propounded to Anderson, the answer of the commission- 
ers arrived. It excited so much disgust and indignation that there 
could be no question as to the proper disjDOsition of it. The Presi- 
dent wrote across it his curt refusal to receive it, and caused it to be 
instantly returned. Then turning to the Secretary of War, he said, 
' Ee-enforcements must now be sent.' The order was made in the 
Cabinet ; but Mr. Thompson, the Secretary of the Interior, did not 
hear it ; perhaps it was not intended that he should. 

" For many days Mr. Thompson had been exerting himself to pre- 
vent the Carolinians from attacking Anderson — an event which he 
believed would be equally disastrous to both sections. To effect this 
purpose — which, to say the least, was not unpatriotic — many telegrams 
were passing between him and Judge Longstreet, an eminent and com- 
paratively reasonable citizen of South Carolina, So late as the 5th, 
the very day the vessel sailed, he answered a direct inquiry of his cor- 
respondent as follows : ' I can not speak by authority, but I do not 
believe that any additional troops will be sent to Charleston while the 
present status lasts. If Fort Sumter is attacked, they will be sent, I 
believe.' When under these circumstances he heard that the expe- 
dition was actually at sea, it is not surprising that he was both amazed 
and shocked. He felt that he had been not only slighted, but de- 
ceived, and used as an unconscious instrument to produce a gross and 
shameful deception upon those who had trusted in his word alone. 
Was it a violation of his official duty to remove a delusion which owed 
its existence to him and him only ? He had reason to believe that his 
assurances had thus far done much to kee]) the peace and to save 
Sumter from assault. Was he bound to withdraw them now that he 
knew them to be false, and thus imperil the Star of the West with 
her freight of human life ? He thought he was. Having given an 
unofficial opinion tliat re-enforcements would not be sent at the very 
moment when they were actually embarking, he determined to send 
an unofficial dispatch to say that they had in fact been sent, but with- 
out his knowledge or consent. 

'' He wrote this dispatch at his house, and exhibited it to Judge 
Black, who had gone there to dissuade him from the act. The mes- 



BIOGRAPHICAL SKETCH. 21 

senger of the department, William W. Cowling, was waiting to carry 
it to the telegraj)h-office. He caught a few words of the earnest dis- 
pute which followed — Judge Black imploring him not to send it, and 
Mr. Thompson insisting that it was a matter which deeply concerned 
his honor. Cowling was convinced by the argument that Judge 
Black was right and Mr. Thompson wrong. Being a patriot as well 
as an official, he disobeyed the Secretary's order, put the perilous dis- 
patch in his pocket, and left the Charlestonians to find out the altered 
state of affairs as best they could. His conduct was cordially ap- 
proved by Mr. Kelly, of the Interior, Judge Black, and the Hon. 
John Sherman, to each of whom he revealed it within a few hours. 
This dispatch, it is very clear, was never sent, but it is equally clear 
that another was. Mr. Thomj)son may have suspected the fidelity of 
Cowling, or may have received another telegram from Longstreet. 
At all events, he telegraphed that the Star of the West had sailed for 
Charleston with two hundred and fifty troops on board, and that she 
ought to reach the city on that day. The message did not reach 
Charleston until twenty minutes after five in the evening. It was 
none too early, for by daylight the next morning the ship was steam- 
ing up the channel — and of the rest the reader is already informed. 
Of course, Mr. Thompson instantly resigned his office. 

'' On the 11th of January Mr. Thomas resigned from the Treasury 
Department, because he disagreed with the President and Cabinet 
about affairs at Charleston, and especially about * the authority under 
existing laws to enforce the collection of customs at the port of 
Charleston.' General Dix took his j^lace, and henceforth the Cabinet 
was a unit. Perhaps the spirit by which they were animated as a 
body was never more candidly expressed than in the following letter : 

" ' Statk Department, January 17, 1S61. 

" ' My dear Sie : I am much obliged by your letter. It undoubt- 
edly would be a great party move as between Democrats and Black 
Eepublicans to let the latter have a civil war of their own making. 
It would also be poetical as well as political Justice to let them reap 
the whirlwind which must grow out of the storm they sowed. But 
can we avoid doing something ? Is not the business altogether 
beyond party considerations ? For South Carolina compels us to 
choose between the destruction of the Government and some kind of 
defense. They have smitten us on one cheek — sliall we turn the 
other ? They have taken our coat — shall we give them our cloak 
also ? The gospel commands this in private affairs, but the rule 



22 BIOGRAPHICAL SKETCH. 

is not understood, I think, as applying to public property held by a 
government in trust for its people. I am not in favor of war, but I 
can not resist the conviction that when war is made against us a mod- 
erate self-defense is righteous and projoer. Coercion — well, I would 
not care about coercing South Carolina if she would agree not to coerce 
us. But she kicks, cuifs, abuses, spits upon us, commits all kinds of 
outrages against our rights, and then cries out that she is coerced if 
we propose to hide our diminished heads under a shelter which may 
protect us a little better for the future. 

*' ' I agree with you that we ought not to make a civil war. Do 
you disagree with me in the opinion that we are bound to defend our- 
selves from an unjust and illegal attack ? "Whatever your answer may 
be, it can not prevent me from being 

" * Your friend, J. S. Black. 

'"Hon, A, V. Parsons.' 

" It is safe to say that no one in high position during these times 
has received more praise or deserved it less than General Scott. 
Before the election of Lincoln, before a State had seceded, before it 
was certain that any State would secede, he laid before the Secretary 
of War a paper which he called his 'views.' It was not inappro- 
priately named, for he presented little else but dissolving views of the 
great republic rent into 'fragments,' of which he volunteered to 
trace the proj)er boundaries and locate the capitals. He quoted 
Paley's ' Moral and Political Philosophy ' to show that a nation might 
use force to preserve the continiiity of its territory ; but for a seces- 
sion which made no gap in the Union, which left thQ continuity 
unbroken, and merely carried away a dozen or so of neighboring 
States, he could think of no remedy whatever. Thus, if South Caro- 
lina seceded, while N'orth Carolina and Georgia remained. South Caro- 
lina might lawfully be coerced ; but if all three went out together, 
there was nothing to be done but to bless them, unless, perhaps, to 
give them a little considerate advice about the selection of a capital ! 

'' ' It will be seen,' said he, ' that the " views " only apply to a case 
of secession that makes a gap in the present Union.' The falling off 
(say) of Texas, or of all the Atlantic States from the Potomac south, 
was not within the scope of General Scott's provisional remedies. 
'The foregoing views,' he explained, 'eschew the idea of invading 
a seceding State.' He dreaded 'the laceration and despotism of the 
sword,' and considered the reduction of the Union to 'fragments' a 
smaller evil, Mr. Buchanan thought this part of the document ' out 
of time and out of place ' — a very mild judgment. It might have 



BIOGRAPHICAL SKETCH. 23 

been penned at the headquarters of the South Carolina militia, and 
read with applause in a secession convention. But after mentioning 
what his party feelings were like, and what ' ticket ' had his sympa- 
thies, the general came to the military point in this dreary disserta- 
tion. It took only a short paragraph to state it, and consisted of the 
naked adA'ice to garrison nine forts in the South, so as to make any 
attempt to take them ridiculous. There he broke off, omitting en- 
tirely to designate any force available for such a purpose. The next 
day, however, he supplied the information. ' There were,' he said, 
' in all five companies only within reach ' — not enough to make a 
single one of the forts impregnable. And to this statement he gave 
the imposing title of ' Supplemental Views.' 

" The general repeated his advice on the 15th of December, and 
on the 28th of January published his * views ' to the world. South 
Carolina and the cotton States included. What aid and comfort they 
afforded to the latter can only be conjectured from the character of 
the document itself. But, determined not to be misunderstood, he 
saluted the new Administration in the person of Mr. Seward, on the 
3d of March, with a letter in which he again aired his political opin- 
ions, and, after deprecating the enormous waste and numberless hor- 
rors of civil war, which could only end in the conquest of devastated 
and worthless 'provinces,' he put the sum of his 'views,' about which 
he had made such a pother, into a single sentence : ' Wayward sisters, 
depart in peace.' 

" When the Star of the West was fired upon. Major Anderson made 
no reply from the guns of Sumter, as he should have done, when he 
saw his own supply-ship, which he knew and recognized, suffering in 
the midst of an overwhelming cannonade. But he sent to the Gov- 
ernor to demand a disavowal of the act, and in case of a failure to 
get it, said he would consider the act the beginning of hostilities and 
fire upon any yessel that came within reach of his guns. But his 
zeal departed with his messenger, and when the Governor transmitted,, 
instead of an apology, a demand for the surrender of Sumter itself, 
he calmly referred the proposition to Washington, and made himself 
happy with a truce. The major might certainly have done better, 
for at the moment he considered his position impregnable, boasting of 
his power to command the harbor and defeat ' any force that might 
be brought against him.' 

"Colonel Hayne, the Governor's envoy, and Lieutenant Hall from 



24 BIOGRAPHICAL SKETCH. 

the fort, arrived in Washington on the 13th of January. The latter 
represented Major Anderson as perfectly secure, while the former 
bore a demand for the surrender of his position. But nine of the 
Senators from the cotton States prevailed on Colonel Hayne not to 
deliver his note until they had time to ascertain whether Mr. Buchanan 
would agree not to re-enforce the fort, provided Governor Pickens 
would also let it alone. On the 19th the correspondence between 
them was laid before the President, who employed the pen of Mr. 
Holt to say, in reply, that ' at the present moment it is not deemed 
necessary to re-enforce Major Anderson, because he makes no such 
request, and feels quite secure in his position. Should his safety, 
however, require re-enforcements, every effort will be made to supply 
them,' On the 30th Colonel Hayne presented the Governor's de- 
mand, and again Mr. Holt replied in a letter of overwhelming force. 
The whole subject was beyond controversy. The President had no 
notion of a surrender, and would not entertain the thought for a 
moment. 

" In pursuance of this policy — now thoroughly established and well 
understood — another expedition for the relief of Sumter was prepared 
at New York. It never sailed, for two reasons, either one of which 
was more than sufficient : first, because it was thought Anderson did 
not need or want it ; and, second, because South Carolina as well as 
the President was disposed to respect the appeal of Virginia, to avoid 
hostilities until the Peace Congress should meet and act." 

On the 6th of February, 1861, the President had nominated Judge 
Black to the Senate for Associate Justice Of the Supreme Court of the 
United States, to fill the vacancy occasioned by the death of Mr. Jus- 
tice Daniels ; but, owing to the previous withdrawals of Southern 
Senators, and certain opposition of Senators remaining, very easily to 
be accounted for, tlie nomination was neither confirmed nor rejected, 
but suffered to fall with the expiration of the session. 

Judge Black left office with *' clean hands and empty." At the 
age of fifty-one he returned to the bar to begin life anew, and, in so 
far as worldly goods were concerned, to begin at the bottom. He 
now removed from Somerset County to York, where he shortly after- 
ward bought the lands and subsequently built the house so well 
known under the name of Brockie. In 1861 he was appointed Re- 
porter to the Supreme Court of the United States, and published the 



BIOGRAPHICAL SKETCH. 25 

volumes, first and second Black, when lie was forced to resign to meet 
the requirements of a very large and very desirable practice. While 
Attorney-General he had successfully pressed upon the court a num- 
ber of rules, which, with scarcely an exception, governed the whole 
current of decisions in the California cases ; and this circumstance 
it was which gave him the lead and the choice in that whole class 
of business, and for many years few or none of these cases were 
heard in which he did not appear either as private counsel for an 
honest claim, or as special counsel of the United States, or of the 
settlers, against a dishonest one^__,' To some men this great practice 
would have yielded a large fortune ; it did, in truth, bring him an 
irregular income out of all proportion to his wants or his original 
expectations. But he had no taste for the accumulation of money ; 
and, when he had secured a very modest competence, his ambition in 
that particular was perfectly satisfied. The rest of the golden shower 
was neglected ; he would scarcely stoop to pick it up, or, when he did, 
he gave it away, or let it run through his hands like water. He never 
kept a book or an account of any description ; never invested a dollar 
on speculation ; and, except the interest product of his comparatively 
small savings, he never received any money whatever but in fair pay- 
ment of plain, downright professional labor. He lost large sums by 
indulgence of clients who were neither entitled to his charity nor in 
need of it, and he was swindled out of much more by clients and 
others who dishonestly availed themselves of his known simplicity and 
easiness in matters of this kind. 

Judge Black argued in the Supreme Court nearly all the most 
important of the California land cases, and in some of them he 
received fees which seemed large, but were, in fact, not large when 
considered with reference to the labor, responsibility, and magnitude 
of the interests involved. But his practice gradually became general, 
and included the greater number of the so-called political cases aris- 
ing under the various military orders of the Government which 
exceeded constitutional authority and struck at the personal liberty 
of the individual citizen, as well as those arising under the reconstruc- 
tion laws, which invaded the rights of the States and leveled the bul- 
warks of self-government. His work during this period in defense 
of the constitutional rights of the people, and of the institutions 
designed for their protection, was, in a public sense, the most impor- 
tant of his life, not excepting his bold stand for the Union during the 



26 BIOGRAPHICAL SKETCH. 

closing months of Mr. Buchanan's administration.* In most of these 
now historical cases he gave his services without compensation ; in- 

* Who, in our day, was a greater expounder and defender of our laws than Jeremiah 
S. Black ? Who, of all the men of this generation, has offered upon the altars of legal 
liberty the devotion of a brighter genius, the enthusiasm of a more ardent soul, than 
Jeremiah S. Black ? ... He was, likewise, a man of letters, deeply versed in the litera- 
ture of this and the past ages, and acquainted, to use the language of a distinguished 
Englishman, with the best thoughts and words of mankind. It was also his good fortune 
that, owing no doubt to this thorough training in literature, he possessed a wonderful 
force and lucidity of style. His exposition of most complicated questions of law, his 
most recondite ideas on all subjects, were made clear and simple to the slowest minds. 

His invective has had no parallel, in my judgment, in American forensic literature. 
In this field his command of the English language has not been excelled on either side of 
the sea. He was as much superior to Junius as an equal skill in the use of language, 
combined with a vastly superior legal knowledge, could make him, to say nothing of the 
superior manhood which made him sign his name to even the bitterest of his philippics. — 
Senator Vance, of North Carolina. 

Some ten years after hearing him the first time, I heard him for the second time in 
the Blyew case, from Kentucky, reported in 1 3th Wallace. That effort was the finest 
combination of law, logic, rhetoric, and eloquence I have ever listened to. When it was 
finished, a very able attorney of the court, sitting near by, asked me what I thought of 
it, to which I replied that I had come all the way from my hotiie to look after a little 
business here, at considerable sacrifice, but, having heard this argument, I was more than 
compensated. . . . His resources were wonderful, almost boundless, his reading vast, his 
memory prodigious, his versatility extraordinary. Cicero, in one place quoting from 
Demosthenes, that action is the chief excellency in speaking, interprets action to mean 
delivery ; in another place he refers to it as enunciation ; but Quintilian, in quoting the 
same, makes it mean pronunciation, looks, voice, gesture, the whole movement of the 
man speaking. In either and all of the interpretations Mr. Black had this first, this 
second, this third excellency. He not only became his client, but his client's cause ; ho 
was wrapped up and lost in it ; he moved and acted in it. So great were his earnestness 
and power of assertion, I have fancied I could see the convictions of judges giving away 
reluctantly before him and surrendering to him as he spoke. ... A rhetorician without 
a superior — the best phrase-maker I ever heard — he used the English language after the 
style of Shakespeare ; and for clear invective he equaled anything contained in the justly 
famous article of Macaulay on Barere ; a logician, when he stated his case, it was more 
than half argued ; a statesman, molded in the form and style and educated in the school 
of Mr. Jefferson, he was essentially democratic. — Senator Garland, of Arkaiisas. 

If I comprehended Judge Black, and I think we agreed in this, the principium of his 
political and juridical thought was the divinely vested liberty of the man. Government 
was ordained of God for man. Man was not made for the government. To secure this 
right is the only legitimate function of government. Every government which denies or 
violates this right perverts its power, and is a usurpation. To the rude Latin of Magna 
Charta, to the foundation principles of the Norman-Saxon constitution of our fatherland. 



BIOGRAPHICAL SKETCH. 27 

deed, some of the most momentous causes ever heard in the Supreme 
Court — notably those of Milligan and McCardle — were prepared by 
him at vast expense of time and labor, and argued with unrivaled 
power, without fees or the hope of fees. His professional ethics were 
grounded upon doctrines seldom recalled in this sordid age, wherein 
the noble science of the law is so frequently and so openly prostituted 
to Mammon. He gave his services freely whenever tlie rights of the 
public or the liberties of men were in jeopardy, feeling that he owed 
the protection of his professional skill not only to organized society, 
but to every individual in need of it, and especially to those who were 
most in need of it and least able to pay for it. 

Judge Black was counsel for President Johnson in his trial by the 
Senate on articles of impeachment ; but he left the case after the 
President's answer had been filed, for reasons very clearly stated in a 
letter to his distinguished client. He was counsel for Secretary of 
War Belknap upon his trial before the Senate for corruption in office, 
and defended him on the ground that he was no worse than his 
political associates, and ought not to be made the scapegoat to 
carry the sins of the whole off into the wilderness. He was also of 
counsel for President-elect Tilden before the Electoral Commission 
of 1877, where he denounced the fraud then about to be consum- 

to that bundle of institutional liberties which our fathers bound up in the venerable Con- 
stitution of 1789, Judge Black ever appealed, with a magnetic eloquence which thrilled 
the hearts of English-speaking men everywhere, to protect the liberty of the man from 
lawless authority, and to rescue him from the mailed hand of military despotism. His 
argument in Miliigan's case stands as an enduring monument of his genius and his 
courage, in making the habeas corpus an impenetrable shield against all the weapons of 
civil and military power. 

But he found it needful to these personal rights that the local autonomy of each State 
should be secured from the centralizing tendencies of the Federal Government. 

Jealousy of all power, political and corporate, which threatened to abridge the free- 
dom of the man, was the motive force in Judge Black's life as a jurist and statesman. 
To protect the man from the ill-used or ill-gotten power of government and corporations 
and associations, to protect the States against Federal encroachment, these were the 
cardinal principles which guided his political and judicial life. 

In the consistent maintenance of these cherished convictions Judge Black was fearless 
and aggressive. His trenchant pen, his burning eloquence, his compact logic, lighted by 
his wit and humor, sparkling to delight his friends, and blazing to terrify his foes, his 
keen irony, his caustic sarcasm, his scorching satire, and his fierce invective, made him 
foremost among the writers and advocates of his day.— Hon. J. Randolph Tucker, 
of Virginia. 



28 BIOGRAPHICAL SKETCH. 

mated, in words which have since passed into the common speech of 
men. 

The convention of 1872, to reform the Constitution of Pennsyl- 
vania, was a body remarkable not less for the high character of its 
membership than for the spirit and scope of its labors. Its roll com- 
prised all the most distinguished names in the recent history of the 
Commonwealth, and it was, in every respect, an assemblage worthy 
of the illustrious Meredith, its first president. It is too early to esti- 
mate correctly the whole importance of its work, which was approved 
by the people without distinction of party, and ratified by an unj)re- 
cedented majority. But its value seems, by ten years of experience, 
to have been placed beyond dispute, though the real magnitude and 
character of the reforms effected by it are but now coming to be 
clearly understood. Judge Black was a delegate-at-large, and for 
nearly a year was one of the most considerable figures in the conven- 
tion, and certainly one of the most interesting, by reason of the 
radical nature of some of his propositions, and the curious reasoning, 
quaint eloquence, and singular wit, with which he supported them. 
He was especially earnest in behalf of the strongest restraints upon 
corporations, and of an ' ' iron-clad oath " to be taken by members of 
the General Assembly at the expiration of their terms, swearing that 
they had, in fact, behaved themselves well and truly in their offices 
as they had sworn to do when they assumed them. 

The convention assembled on the 12th of November, 1872, and 
adjourned sine die on the 27th of December, 1873. On the 2d of 
October, 1873, Judge Black resigned. He had served during the 
whole period without pay. The Legislature appropriated one thou- 
sand dollars to each member. It subsequently repealed the act, and 
authorized the convention to fix the compensation of its own mem- 
bers, which it did, making the sum fifteen hundred dollars. But 
Judge Black held that the Legislature only could make a lawful 
appropriation of public money, and the members were entitled to 
nothing under the appropriation made by themselves. It was a nice 
scruple, which does not appear to have been shared by any one else in 
the convention ; and every other member received the increased salary 
without question. In presenting his resignation, Judge Woodward 
said : "' It is probably known to every gentleman on this floor that 
Judge Black conceived that the Legislature had no right to turn over 
a sum of money to be disposed of by this convention for the salary of 



BIOGRAPHICAL SKETCH. 29 

members. Acting upon his own personal conviction, he has declined 
to receive any compensation whatever, and has not received a dollar 
of compensation for his services in this body ; nor does he propose to 
do so unless the Legislature shall hereafter make an appropriation in 
the form of the Constitution, which appropriation he does not expect 
the Legislature to make." The convention was very reluctant to 
accept Judge Black's resignation, notwithstanding Judge Wood- 
ward's assurance that it was impossible he should ever occupy the 
seat again. The subject was postponed from time to time ; a com- 
mittee was appointed to wait upon Judge Black and request him to 
return ; but he could not, for many reasons, alter his determination, 
and on the 13th of October, eleven days after its date, the resignation 
was accepted. Judge Black had lost many thousands of dollars in his 
practice by this year's public service, but he had made the sacrifice 
cheerfully, in the hope of accomplishing for the people of Pennsyl- 
vania sundry constitutional reforms which he deemed essential to 
their welfare.* 

During the later years of his life Judge Black labored almost in- 
cessantly, and in a great variety of publications, some of them exhib- 
iting his highest powers of legal statement, to bring the carrying 
companies of the country under the control of the State and of law. 
It was a task purely gratuitous, undertaken solely from an irrepres- 
sible love of Justice and an uncompromising sense of right. He con- 
sidered Article XVII of the amended Constitution of Pennsylvania 
one of the most wholesome it contained, and he determined to do 
his share toward holding the evading railroads to it, and 'Ho hold 
them hard." He had no ambition ;- that, even had there ever been 
a day when he could have served it in this way, was long since spent. 
Freely and frequently as he was maligned in the course of his benefi- 
cent work by the paid legionaries of those who profited by the enor- 
mous abuses of irresponsible railway management, he knew that time 
would show the soundness of his principles and the disinterestedness 
of his motives as well. He had no purpose whatever to serve but the 
protection of the people against corporate aggressions, from which 

* Judge Black was appointed one of three arbitrators by the States of Maryland and 
Virginia to settle the disputed boundary between those States, The original arbitrators 
were Judge Black ; ex-Governor Graham, of North Carolina ; and ex-Govcrnor Jenkins, of 
Georgia. Governor Graham died before the hearing ; and Senator Beck, of Kentucky, 
was substituted. The final award was made in January, 1877. 



30 BIOGRAPHICAL SKETCH. 

they had suffered grievously iu the past, and were likely to suffer more 
gricTOUsly in tlic future, unless the constitutional remedy of ''appro- 
priate legislation *' should he promptly, honestly, and fearlessly ap- 
plied. His last public appearance was made in support of this great 
cause before the Judiciary Committee of the Senate of Pennsylvania. 

Of his remarkable gifts as a '* talker " — of the rare conversations, 
more interesting than the more deliberate produce of his pen, and fully 
as instructive — no record, for the most part, unfortunately remains, 
and none, at all events, could be given here. A book of his table- 
talk would be a contribution to that kind of literature inferior in 
interest and value to none of the class. A second Boswell might have 
done as much for his fame as the first one did for Dr. Johnson's. Cer- 
tain it is, at any rate, that neither the full extent of his mental pow- 
ers, nor the strength, sweetness, and simplicity of his general char- 
acter, were known to those who had not seen him in private, and 
witnessed the play as well as the work of that great understanding.* 

* No more unaffected man nor delightful companion could be imagined. Tlie charm 
of intercourse with such a man was one of life's great pleasures, to be appreciated only 
by those who had enjoyed it. And now it is gone, save only as memory may be able to 
preserve it. 

Proofs of his great powers in judgment, controversy, and literary jx?rfonnanee i-cmain 
to us in his writings ; but, unless it be to those who knew him jx^rsoually, it is all in vain 
to attempt to describe the subtile charm of the gifts, the attractions, the personal virtue 
that built up the man we loved so well, honored and admired so highly, and so deeply 
mourn. — Senator Bayard, of Delaware. 

In social intercourse he was genial, fascmating, and instructive. WTio can ever for- 
get the charms of his conversation, the strength and devotion of his attachments, or the 
fidelity and tenderness of his great heart to his family and friends ? — Hon. J. Randolph 
Tucker. 

We shall ever remember Judge Black as a most fluent talker, entitled to a high place 
among "The Great Conversers" — and in Professor Mathew's charming little book of 
that title, in any future edition, he must appear to some extent, or there will be a mate- 
rial omission. In a book of American ana, his wise and witty sayings and eloquent 
observations, flung out on the spur in hi:= animated talks, would, to the delight of the 
readers, fill a good many pages. lie needed but a Bos-well to make him in that respect 
appear eqaal to Johnson. Talk was liis kind of dissipation — his intoxicant — the means 
for exhilaration, like wine to the more sluggish. — ^Thomas J. Keenan, Esq., rutsburg. 

That he belonged to a giant race of lawyers, now almost if not quite extinct - that 
many of his judgments from the bench equal in directness, force, and elegance of style 
the best judicial writing in the literature of our jurisprudence ; that he was the greatest 
advocate at the bar this country has had seen since Pinkney ; that his diction was richer 
than Macaulay's and more brilliant than that of Junius ; that bis specdv and thought often 



BIOGRAPHICAL SKETCH. 31 

It will be iHinecessary to inform the reader of the following pages 
that Jeremiah S. Black was a devout Christian. Fearing nothing 
else in this world, he went always and humbly in the fear of God. 
His whole mind and being were saturated with the morality of the 
Testament of Christ, which, he said, was " filled with all forms of 
moral beauty, and radiant with miracles of light. " He was baptized 
in 1843 by Alexander Campbell, whose eulogy he pronounced upon 
the unveiling of his statue at Bethany, "West Virginia. 

Judge Black expired at Brockie on the 19th of August, 1883, at 
about two o'clock in the morning. The windows of the chamber in 
which he lay during his last illness afforded' one of the fairest prospects 
on this earth, and one which he loved beyond all others. In no heart 
that ever beat was the sentiment of home more predominant than in 
his ; and not Brockie only, with its inmates, but the whole scene 
around it — the rich landscape, the fertile farms, the thrifty, inde- 
pendent people, with whom he thoroughly enjoyed the sense of good 
neighborhood — were very dear to him. Unable to rise and see for 
himself, he asked his wife to go to the window and tell him how it 
looked, especially if the fields were green ; and he listened to her 
report with simple and touching eagerness. 

He knew from the first that he was fatally stricken, and no assur- 
ance'to the contrary produced the slightest impression. But he said 
very little on the subject. In his broad view of the economy of na- 
ture and of God, dissolution of this mortal life was an event not to be 
dreaded but to be soberly welcomed by one who had no reason to fear 
the face of his Judge. To one of his family he said, *' I would not 
have you think for a moment that I am afraid to die." And to an- 

recall the sagacity of Montaigne and the humor of Rabelais ; that he was a patriot min- 
ister of state who stood by his country, when others faltered, in the darkest hour of its 
history ; that he would have gone to the block as cheerfully as any man that ever lived 
for any opinion he held dear — these are well-known and now, I believe, generally con- 
ceded facts in the life and character of Judge Black ; but all do not know so well, for 
those who came closely in contact with him alone could know, how ingenuous he was in 
all his personal relations, how unselfish in his kindness, how cheerful and cordial in his 
intercourse with friends, how genial, gentle, and unpretentious in his manner, how origi- 
nal, simple, and unaffected in all his ways and in all his words. His nature was not 
spoiled by his great reputation. The sweet sensibilities of his heart were not touched 
by the corroding or the chilling influences of public life. His great manhood stood by 
him to the last, and he died, as he had lived, a simple, direct, and earnest man. — J. Hub- 
let AsHTON, Esq., 'Washington^ D. C. 



32 BIOGRAPHICAL SKETCH. 

other : " My business on the other side is well settled — on this it is 
still somewhat at loose ends " ; and then proceeded in ordinary voice 
and apparently in ordinary spirits to give certain instructions about 
his worldly affairs. These expressions were each of them made in the 
hearing of but one person. There were no scenes — none of the usual 
death-bed incidents. His visible descent to the grave, except for the 
great bodily anguish he endured, was perfectly serene, and he lay 
down to the long rest he had so well earned with all the majesty of 
his natural character about him. 

In all the intervals of intense suffering throughout that memora- 
ble week, he indulged the usual flow of clear, delightful conversation, 
lighted up with his usual wit, rich with his customary humor, and 
abounding in amusing anecdotes and interesting reminiscences. No 
one who had seen him, without knowledge of his actual condition, 
could have imagined that all this while he was consciously dying, and 
that the time remaining to him had been measured in his own mind 
by hours, and they rapidly diminishing ! 

Eealizing the approach of the parting moment — the parting of 
life and of ties more dear — ^he uttered that prayer, unsurpassed for its 
simplicity and tenderness in the literature of human devotion : "0 
Thou beloved and most merciful Father, from whom I had my being 
and in whom I ever trusted, grant, if it be Thy will, that I no longer 
suffer this agony, and that I be speedily called home to Thee. And, 
God, bless and comfort this my Mary." 

He died at about ten minutes past two o'clock on the morning of 
Sunday the 19th of August. His death was worthy of himself. 

'"' Our children will marvel what manner of men their fathers were 
among whom there could have been a difference of opinion about the 
merits of such a man. His fame, like a mighty river, will grow wider 
and deeper as it rolls downward," 

Note. — The last book Judge Black had in his hands was the second volume of the 
" Life of James Buchanan," by Mr. Curtis, then several months from the press. He had 
opened it at the account of Mr. Buchanan's death, and had evidently read it with deep 
interest, for the leaves were not cut but rudely torn apart by running his thumb through 
them. He never saw that part of the work which concerned himself. Those pages 
were neither cut nor torn. Having read this story of the death of his greatly honored 
friend, he walked out upon the broad veranda of Brockie, gazed thoughtfully at the 
shadows of the clouds chasing each other across the moonlit hills — ^the last look he ever 
cast upon the world — and retired to the bed from which he never rose. 

It was that day, his family suppose, and before opening the Life of Mr, Buchanan, 



BIOGRAPHICAL SKETCH. 33 

that he wrote the following lines, manifestly the beginning of a very brief reply which he 
intended to make to the famous assault upon him by Mr. Jefferson Davis. It was the last 
time he held a pencil in his hand. The reader familiar with Judge Black's style will 
detect a melancholy tone in this fragment, very unlike the opening passages in any other 
of his many controversial papers. It is believed that one sheet was swept by the wind 
through the open windows of his library and lost : 

I do not see as clearly as some of my friends the necessity of answerin"' General 
Davis's late article in the Philadelphia " Times." As a contribution to history, true or 
false, it amounts to nothing ; as a reargument for secession, it is the very flattest of all 
his numerous failures; as a personal assault upon me, it is so surprisingly feeble and 
awkward that it inflicts no wound. But his weapon is smeared with venom, which if not 
attended to, may fester in the scratch. By reason of this last fact, and because the char- 
acter and career of Mr. Davis are regarded with great interest and admiration by a lar^-e 
portion of the country, I can not treat him with contemptuous silence. 

My original sin against him consisted in utterly rejecting the doctrine that a State had 
a right to secede and dismember the Union whenever its political leaders chose to take a 
huff at the result of a presidential election, or lose their temper by falsely anticipating 
some maladministration of Federal powers. The States have rights carefully reserved and 
as sacred as the life, liberty, and property of a private citizen, but to say that among these 
rights is that of expelling from its territory the ofiicers of the General Government, re- 
sisting the execution of its laws, and abolishing its Constitution, is to utter an absurdity 
too absolutely gross to be entertained by any man who has bestowed one rational look 
upon the subject. This is a conclusion too simple to allow of argumentation either pro 
or con. It is not with me a matter of mere belief. I know it as every man knows how 
many fingers he has to his hand as soon as he counts them. If my opinions, carefully 
formed and faithfully adhered to, were in conflict with his interests, wishes, or feelings, 
I can not help it. Nobody desired more ardently than I did that he should look for peace 
safety, and justice where alone he could find them, inside of the Union and under the 
shelter of the Constitution. But, in spite of all entreaties, arguments, and demonstrations 
of the truth, he would go out and drag his people out with him into secession. He proudly 
put himself at the head of the movement to dismember thie nation ; he wrecked his cause 
brought hideous ruin upon his followers, and left himself without an object in life except 
to throw the blame of his disasters upon somebody else. 

*' Dl-weavcd ambition, how much art thou shrunk ! " 

Tlie Philadelphia "Press" of September 10, 1883, contained a ten-column article en- 
titled " Judge Black's Answer." It was published as being substantially the reply which 
be would have made to Mr. Davis had he lived. It made no pretensions to verbal accu- 
racy, but was the reproduction from memory alone by Colonel Frank A. Burr of a conver- 
sation with Judge Black on the day Mr. Davis's letter appeared in the " Times." The 
writer hereof was not present at the conversation, and is, therefore, unable to bear posi- 
tive testimony to the correctness of the report. But the internal evidence was so striking 
and abundant that he has never thought of questioning it — nor, indeed, has any one else. 
It was, on the whole, one of the most marvelous feats of reporting ever accomplished. 
Previous publications by the same gentleman in the same journal had thrown a broad 
glare of light over the events of 1860-'61, and the last interview was but the crowning 
one of a very brilliant and useful series. 



MISCELLANEOUS. 



ADDRESS DELIVEEED BEFOEE THE AGEICULTURAL 
SOCIETY OF SOMERSET COUNTY, AT ITS ANNUAL 
EXHIBITION, OCTOBER 6, 1854. 

Gentlemen of the Agricultukal Society : Of course, I am 
not expected to give you any instructions in the details of practical 
agriculture. If I were comi^etent to such a task, this is not the occa- 
sion to execute it. An essay on the breeds of cattle, or the genealogy 
of horses — on the process of making butter, the composition of ma- 
nures, or the cultivation of particular crops — would, at present, be 
out of place and out of time. My purpose is broader, if not better, 
and more general, if not more useful. The duty assigned to me will 
be done if I lay before you a few of the facts and reasons which tend 
to establish one most important truth, namely, that the art which you 
profess is in a condition which needs, and will most amply repay, a 
vigorous effort to improve it. 

Wlien those who belong to a particular profession hear themselves 
addressed by one whose life has been devoted to a different pui-suit, 
they take his advice reluctantly, or not at all. They believe as far as 
they please. It is so much easier to talh than to do, that an outsider 
can never speak as one having authority. But I do not know why 
you should not take a suggestion, or listen to a remonstrance, let it 
come from whom it may. There is nothing at all suspicious in the 
fact that a merchant or mechanic, a physician, minister, lawyer, or 
judge, takes a deep interest in your business. It is their misfortune 
that they do not follow it, for most of them would if they could. 
The taste for agricultural employments and rural scenery is almost 
universal. The cultivation of the earth is the only trade which God 
ever commanded any man to exercise ; and it seems to have been a 
part of the divine economy to surround it with attractions. Our nat- 
ural organization is fitted for the country, and not for the town. The 
human eye is so formed that it rests with pleasure on green and blue, 
and can not, indeed, endure any other color for a long time without 



MISCELLANEOUS. 35 

injury. Our sense of sight is never so mucli delighted, because never 
employed in a manner so congenial to the nature of its organ, as when 
we look upward into the clear blue of the heavens, or abroad upon 
the green earth. When man was entirely blessed he was placed in a 
garden — not merely a patch for cabbage and potatoes, three perches 
square, and closed in by a paling fence — but comprehending grounds 
of vast extent and boundless magnificence, adorned with flowers and 
enriched with fruits. Hill and dale, forest and fountain, shady walks 
and sunny slopes, rich fields and verdant meadows, with four great 
rivers rolling through them, made a landscape such as no eye has ever 
seen since the fall. It was here that heaven and all happy constella- 
tions shed their selectest influence on the marriage of our first parents. 
Imagination has never painted a scene of perfect happiness without 
similar surroundings. Scenes of idyllian beauty form the principal 
feature in the heaven of every religion, whether true or false. The 
Elysian Fields of the Greek mythology, and the paradise of Moham- 
med, are ready examples. The land which flowed with milk and honey 
was, to the Jew, a type of that better country to which he should go 
after his journey through the wilderness of life was closed. And many 
a Christian, when his soul recoiled from the dark stream of death, has 
felt his courage revived by the assurance that — 

"Sweet fields beyond the swelling flood 
Stand dressed in living greeny 

Other occupations are followed for the wealth and fame they produce, 
but agriculture is crowded with amateurs, who pursue it for its own 
sake ; and thousands feel the same desire, whose narroAv means forbid 
them to indulge their wishes. When Cincinnatus abandoned the 
leadership of the mightiest empire in the world to hurry home and 
finish his plowing before it got too late in the season, and when Wash- 
ington retired from the presidency to cultivate his farm, they both 
yielded to an inclination as common as it was natural. The praise 
they have received for it is a thousand times greater than they de- 
served. The passion for fame, for wealth, or for power, does undoubt- 
edly predominate in some persons, but love for the simple pleasures of 
a country life is seldom extinguished in any sane man's mind. 

These natural tastes, however, do not account for all the solicitude 
which is felt for the prosperity of agriculture. Our interest in it is 
marvelously quickened by the fact that our bread depends on it. It 
is the art preservative of all arts. Its success lies at the foundation 
of the general welfare. The fruits of the farmer's labor support the 
industry of all other classes. The ultimate reward for every species 
of toil must come directly or indirectly from the earth, that common 
mother — 



36 MISCELLANEOUS. 

" Whose womb immeasurable, and infinite breast, 
Teems and feeds all." 

But, though it be true that agriculture is the most useful, as well 
as the most attractive, of all pursuits, it is equally undeniable that it 
has advanced more slowly than any other toward the perfection of 
which it is believed to be capable. Speaking comparatively, it can 
scarcely be said to have advanced at all. In everything that aids 
commerce and manufactures, improvements are made which have 
changed the whole face of human society. Those interests are pro- 
jected forward into the future, with a force which overleaps centuries, 
while agriculture creeps on with the slow pace of the hours. In other 
departments ingenuity and skill have supplied the place of labor, but 
the hard toil of the husbandman has not been perceptibly lessened, nor 
his profits in any striking manner increased. Even the useful im- 
provements that have been invented are slowly and suspiciously ac- 
cepted. No class of people in the world, except lawyers, are more 
reluctant than farmers to change an old mode of procedure for a bet- 
ter one. 

This lias been seen and felt as a great misfortune by those who are 
determined to mend it if they can. They do not believe that there is 
any inherent difficulty in the nature of the subject, which should 
make the progress of agriculture less than that of other branches of 
industry. Scientific men and practical men — men who think and 
men Avho work — are everywhere giving their attention to this, as the 
greatest of human concerns. If the effort be successful, those who 
aid in it will earn a title to public gratitude such as no conqueror ever 
won with his sword. 

One of the forms which this movement has taken is that of Indus- 
trial Exhihitions. The great shows at the Crystal Palaces of New 
York and London may have done some good. It is certain that the 
State Fairs have been exceedingly beneficial. But County ExMU- 
tions, when they become general, will be fairly Avorth all others put 
together, because their effect and influence come directly home to the 
business and bosoms of the very persons by Avhom alone the cause 
must be carried through. It is on the local societies that the chief 
reliance is placed. I trust that the day when an agricultural society 
was formed here will be an era on which your memories and those of 
your children will love to linger. 

To make the society useful, it is necessary that w-e should be as 
nearly unanimous as possible. We must disarm hostility wherever we 
find it, and rouse the indifferent to active exertion. We may reason- 
ably hope that what we see and hear on this occasion will contribute 
something to that end. 

I do not see how any man can withhold his assistance from you — 



MISCELLANEOUS. 37 

much less how any one can oppose you — unless he belongs to one or 
other of the four classes which I am about to enumerate : 1. There 
are men who think that agriculture is wholly incapable of any im- 
provement whatsoever. With them farming is farming, and nothing 
more ; knowledge can not do it better, nor ignorance worse ; the busi- 
ness is now, and was, when Adam left the garden of Eden, in as j^er- 
fect a condition as it ever can be. 3. Others believe that, though 
much more might be known, it is not best that they should know too 
much, especially about their own business. In their opinion the tree 
of knowledge continues to bear a forbidden fruit, and no man can 
make himself a perfect fool except in one way, and that is by being 
wiser than his father. 3. Those who belong to the third class assert 
that agricultural societies are not the fit and proper means of spread- 
ing among the people the knowledge which they admit might, and 
ought to be, communicated in some way. 4. The fourth set are 
almost too contemptible to be mentioned. They bear to the country 
the same relation that hardened sinners do to the Church. They don't 
care. You may convince them that this cause is a good one, and still 
its success would give them no pleasure, its failure no pain. Such 
peoi:)le never regard anything beyond their own most immediate and 
most selfish interests. 

It would be an insult to this assembly to suppose that it contains 
a single person of the description last mentioned. I do not believe it 
does. It will be sufficient, therefore, for all present purposes to show 
that great and very desirable improvements may be made in agriculture 
by means of agricultural societies. 

Improvement — what do we mean by that word ? An art is im- 
proved simply by the use of more science in the practice of it. I 
know very well that the mention of scientific farming suggests to 
many minds the idea of a model farm, conducted on fanciful princi- 
ples, by some soft-handed gentleman with plenty of money and not 
much common sense — a place pleasant enough to look ujion, but very 
expensive — absorbing annually from other sources of the owner's in- 
come three or four times as much as it produces. But this is not 
what I mean. The improvements I speak of are those which will 
lighten labor and swell the profits ; improvements which can be meas- 
ured by the increased value of your land, and the additional number 
of dollars in your purse at the end of each year. 

The earth is a machine, with certain powers which are in constant 
motion during the summer season, carrying on the process of vegeta- 
tion. Like other machines, it is liable to get out of order. It also 
resembles other machines in the fact that the value of its products 
depends mainly on the skill and care of those who attend it. Badly 
managed, it turns out bad work, in small quantities, and its powers 
are speedily exhausted. With more skill, it will yield larger and bet- 



38 MISCELLANEOUS. 

ter products, with less labor and expense, while its capabilities will 
become greater by use. The knowledge necessary to keep this grain 
and fruit making machine running to the best advantage is agricultu- 
ral science. 

If you relied for a living on a water-mill or a steam-engine, you 
would not be content without knowing as much about its structure, 
and the laws of its motion, as would enable you to get the most out 
of it with the least wear and tear. This would be mechanical science. 

Science is the handmaid of art. The latter can not exist, even in 
a rude state, Avithout the former. I do not say that every artisan is 
bound to comprehend the whole theory of his trade. But he should 
know — or, at least, he should not refuse to know — the practical re- 
sults of other people's experience, as well as his own. Very little is 
done in this world by mere force. Blind labor swells its muscles and 
strains its nerves to no i)urpose. The miner digs in vain until geology 
tells him the position of the treasure he seeks. The dyer can not 
make his colors adlicre unless chemistry furnishes him a mordant. 
Optics must tcacli the painter the law of perspective before his picture 
will stand out on the canvas. The vessel of the mariner will float at 
random until he learns from natural philosophy that the magnetic 
needle points to the pole. 

It is thus that Science aids us in the commonest business of life, 
and scarcely claims the work as her own. Star-eyed and glorious as 
she is, she disdains not the humblest employments. She comes to you 
with benevolence and truth beaming from her face, and offers her 
service, not only to decorate your houses and train the flowers in your 
garden-plots, but to fashion your implements, to compound your ma- 
nures, to sow and gather your crops — to relieve you, in short, from a 
whole world of drudgery, and to scatter plenty all over the smiling 
land. She will put time and space under your command, and pour 
out uncounted heaps of treasure at your feet. It was of her that Solo- 
mon spoke when he said : " Iler merchandise is richer than the mer- 
chandise of silver, and the gain thereof greater than fine gold. She is 
more precious than rubies, and all thou canst desire is not to be com- 
pared unto her. Length of days is in her right hand, and in her left 
hand riches and honor." 

Without Science, man, the ruler of this world, would be the most 
helpless of all animated beings. His Creator made him the monarch 
of the earth, and gave him dominion over it, to govern and control it ; 
to levy unlimited contributions upon it, and convert everything in it 
to his own use. But he found himself at the head of a revolted em- 
pire. All its physical forces were in a state of insurrection against his 
lawful authority. The inferior animals were his enemies. The storms 
poured their fury on his unsheltered head. He was terrified by the 
roar of the thunder, and the lightning seared his eyeballs. lie was 



MISCELLANEOUS, 89 

parched under the hot sun of summer, and in winter he was pierced 
by the cold. The soil, cursed for his sake, produced thorns and this- 
tles. The food that might sustain his life grew beside the poison that 
would destroy it, and he knew not how to distinguish the one from 
the other. The earth hid her minerals deep in her bosom, and guarded 
them with a rampart of thick-ribbed rocks. The rivers obstructed 
his passage ; the mountains frowned their detiance upon him ; and the 
forest spread its gloom around him, breathing a browner horror upon 
the dangers that beset his way. If he left the dry land and trusted 
himself to the ocean, the waters yawned to engulf him, and the tem- 
pest came howling on his track, lie seemed an exile and an outcast 
in the world of which he was made to be the sovereign. But Science 
comes to rescue the powerless king from his misery and degradation. 
Gradually he learns from her the laws of his empire and the means 
by which his rebel subjects may be conquered. From age to age he 
accumulates the knowledge that clothes him with power and fills his 
heart with courage. Step after step he mounts upward to the throne 
which God commissioned him to fill. He holds a barren scepter in his 
hand no longer. Creation bends to do him homage. The subjugated 
elements own him for their lord, yield him their fealty, and become 
the servants of his will. The mine surrenders its treasures ; the wil- 
derness blooms around him like a new Eden ; the rivers and the sea 
bear his wealth upon their bosom ; the winds waft his navies round the 
globe ; steam, the joint product of fire and water, becomes his obe- 
dient and powerful slave ; the sunbeams are trained to do his paint- 
ing ; the lightning leaps away to carry his messages, and the earth 
works with ceaseless activity to bring forth whatever can minister to 
his gratification. 

But the whole of his empire has not yet been entirely subdued. 
The richest portion of it — the agricultural region — has been much 
neglected, and there he has won but a partial supremacy. Science is 
organizing an "army of occupation" to march into it to take com- 
plete possession, to tame the rebellion of Nature, and to bring all her 
powers under the absolute sway of man, their imperial master. You 
will volunteer for the war. when you think how much has been effected 
in other departments by similar expeditions. The fight is not to be 
dangerous, nor the result doubtful. At the worst you will only be 
annoyed for a while by Ignorance and Error, those savage but not very 
formidable bush-fighters, who will hang upon your flank and rear. 
The victory, which must come, will crown you with laurels, bloodless 
but green with an everlasting verdure, and load you with spoils to 
enrich you and your children in all coming generations. 

Every one knows that this is an age of progress. No one is so 
ignorant as not to know that in modern times the laws of nature have 
been revealed with a fullness, and defined with a precision, unparalleled 



iO MISCELLANEOUS. 

at any former period. It is equally well known that these discoveries 
have been used, Avith prodigious effect, in all the arts, except agricult- 
ure, to which they are applicable. The facts and figures which mark 
some of the ca[)ital points of this progress will not be inappropriate ; 
for I repeat that Science stands ready to do for you all that she has 
done and is doing for others. 

A single steam-engine now carries at the rate of five hundred miles 
a day the same quantity of goods which, forty years ago, it required 
seven hundred and fifty horses to haul at the rate of fifteen miles 
a day. 

In the business of weaving, one man now docs with ease what it 
taxed the hard labor of twelve hundred to perform before the inven- 
tion of the power-loom. 

All sorts of manufactures are carried on in ways so much superior 
to those which were used, even one generation ago, that goods of 
every description are furnished to the consumer very much cheaper, 
and many of them at less than one tenth of their former price ; and 
this, although the demand has been enormously increased, and the 
profits of the manufacturer are much greater than ever. 

Macaulay says that in the reign of Charles II — not further back 
than twice the length of an old man's life — a letter sent by mail from 
London to one of the midland counties of England, where it would 
go now in four or five hours, was as long in reaching its destination 
as it would be at this day in going from London to the interior of 
Kentucky. 

A man may start from hero, cross the Atlantic, visit every capital 
city in Europe, and return home again, in less time than used to be 
required for a trip to St. Louis. 

The means by which those who **go down to the great sea in 
ships" have brought their art to its present state, is an illustration as 
striking as any that could be given of the practical use which has 
been made of scientific discoveries. It is an old tradition that the 
first idea of navigation was suggested to the mind of an ingenious 
savage by seeing a hollow reed, which had been split longitudinally, 
floating on the water. He took the hint and made himself what, in 
Western phrase, would be called a *' dug-out." In process of time 
oars were added. Then came a more complicated vessel, with sails to 
move and a rudder to guide her. In this a bold navigator would vent- 
ure from headland to headland, keeping one eye carefully on the 
shore and the other on the clouds. At length they learned from the 
old Chaldean shepherds how to steer by the stars. With this little 
knowledge of astronomy they went far away from land, though it 
became wholly useless just at the time it was most needed — when the 
skies were overclouded and the tempest came out on the deep. Navi- 
gation stood still at that point for thousands of years, because it was 



MISCELLANEO US. 4 1 

believed (as some farmers now believe of their art) that it was already 
too perfect to be improved. But see what modern discoveries have 
brought it to ! The mariner now leaves the port of his departure with 
a serene and steady confidence in his resources. Astronomy, natural 
philosophy, optics, magnetism, the whole circle of the physical sci- 
ences, and numerous instruments, contrived with the most exquisite 
mechanical skill, are all at his command. He can measure his rate of 
sailing exactly, and knows the course he is on with absolute certainty. 
When he is a thousand miles out, if he doubts the accuracy of his 
reckoning, he is able to correct it. lie lifts to his eye a tube fitted 
with glasses through which he can see far out into illimitable space — 
many millions of miles beyond the reach of his unassisted vision. 
He ascertains the relative position of some awfully distant world ; and 
thence, with the help of his chronometer and his nautical almanac, 
he calculates his longitude. Another observation with a different in- 
strument upon another celestial body gives him the means of finding 
his distance from the equator. Combining these two results, he puts 
his finger upon a spot in the chart and says with undoubting confi- 
dence, ''I am precisely there." Geography tells him where to steer 
his vessel for the port of her destination, and how to avoid all the dan- 
gers that lie between, lie holds her head to the true course, and 
fearlessly stretches away over the dark-blue waters, and they bear him 
onward like the horse that knoweth its rider. When to this is added 
the power of steam to propel him, it may well be said that he has 
conquered both wind and wave. Fire may consume his vessel, or an 
iceberg may shatter it ; but the ordinary perils of the sea are reduced 
almost to nothing. 

Our all-wise Creator has endowed us with no faculty in vain. lie 
permits us to discover no useless truth. Some, which appeared the 
most unpromising and barren, have borne the richest fruit. A name- 
less philosopher, somewhat more than three thousand years ago, was 
handling a piece of amber, called in his language electron, lie saw 
that, when it was briskly rubbed, it had the power of attracting and 
holding to it certain light substances. He thought it was endued 
with some kind of animal life. This satisfied liim, and no better ex- 
planation of the marvel was given for several centuries. Yet there 
was the germ of that science out of which arose the voltaic pile and 
the galvanic battery, whose powerful interrogations of nature have 
compelled her to yield up the most important secrets of chemistry. 
Still, no one dreamed of the identity of lightning and electricity ; and 
Franklin's letter, suggesting it, was read in the Royal Society at Lon- 
don amid roars of laughter. Neither philosophers nor unlearned men 
could believe that the crackling noise produced by rubbing a cat's 
back was caused by the same agent which "splits the unwedgcable 
and gnarled oak." But Franklin quietly drew it down from the cloud 



42 MISCELLANEOUS. 

along the string of his kite, and lie knew that his name was linked 
forever with the grandest discovery of the age. It was immediately 
turned to practical account. In every part of the civilized world iron 
rods arose above the houses, and pointed toward heaven, to catch the 
lightning and lead it away. Franklin had accomplished for all timid 
people Avhat Macbeth desired for himself, when he wished that he 
might 

"... tell pale-hearted Fear it lies, 
And sleep in spite of thundery 

But the end was not yet. The great triumph of the amber science 
was still to be achieved. You see it now in the vast system of electric 
wires distributed all through the country, along which the " sulphur- 
ous and tliouglit-executing fires " go flashing with intelligence, wher- 
ever they are sent by the will that controls them — bearing the news of 
life and death over mountain and lake, and river and valley — clearing 
thousands of miles at a single bound. By means of this amazing in- 
strument the eloquence of the statesman thrills in the nerves of the 
people at each extremity of the nation almost as soon as it is uttered 
at the Capitol ; the friend at one side of the continent takes counsel 
with his friend at the other, as if they stood face to face ; and the 
greeting of the far-off husband leaps in an instant to the heart of his 
wife, and makes the fireside of his distant home glad with the knowl- 
edge of his safety. 

Science has extended her dominion even over regions which seemed 
to be entirely ruled by the fickle scepter of Chance. Life is proverbial- 
ly uncertain ; yet nothing can be truer than the life-tables of an insur- 
ance company, when its officers desire to make them so. The destiny 
of each human individual is hid in deep obscurity — shadows, clouds, 
and darkness rest upon it, and conceal it from every eye except the 
all-seeing One. But disease and mortality do their work on large 
communities by general laws. The average duration of life, and the 
average amount of sickness, in a nation, can be counted beforehand 
with perfect accuracy. Thus, while the individual man is a mystery 
to be solved by Omniscience alone, man in the aggregate is reduced 
by his brother-man to a mathematical problem. 

We dare not boast of much improvement in law or politics. In- 
deed, they seem to be growing worse. While other things are rising, 
they have a fatal proclivity for the downward track. They darken 
with error in the full blaze of surrounding truth. But medicine has 
advanced with magnificent strides. Life is much longer, and health 
far better, than they used to be. AVhen the cholera came to London in 
a form so frightful that every one was appalled by the report of its 
ravages, the mortality was not greater than it had been at the health- 
iest times a hundred and fifty years earlier. Truly did Solomon say 
that " Wisdom has length of days in her right hand." 



MISCELLANEOUS. 43 

What the trade of the Mississiijpi and the Hudson was before 
steamboats — what the manufacture of cotton was before the days of 
Arkwright or Whitney — what ocean-navigation was before the inven- 
tion of the compass — what land-traveling was before railroads — what 
medicine was when a patient was steamed for the small-pox — such is 
agriculture in the present stage of its progress. It will not have its 
due until it is up, at least, to their present condition. There is a cer- 
tain amount of skill and science applied, every day, to the working of 
this machine, which we call the earth. It would be as wise to forget 
all that as to learn no more. He who has a race to run is not surer of 
losing the prize, when he turns upon his tracks, than when he stands 
still in the midst of his career. To look back over the ground already 
traversed will be an incentive to the work which is yet to be accom- 
plished. If something has been done in the dark time that is long 
since past, what may we not hope for with the sunlight of modern 
civilization beaming on our path ? It may startle some of you, and 
sound in your ears like a slander, to tell you that you arc all scientific 
farmers. It is true, nevertheless. That knowledge, whether it be 
much or little, which comes from experience, remembered and ar- 
ranged so as to be ready for use when wanted, is science. There was 
a time when it did not exist at all in any degree. When we reflect 
how high we are placed by the little we have above those who have 
none, and what a struggle it must have cost somebody to introduce it 
at the beginning, we shall appreciate its value, and perhaps make an 
effort to get more. 

Let your imaginations carry you back to the time when agriculture 
was in its infancy — before the earliest dawn of Greek civilization. In 
those days men depended principally upon the chase for a living. 
They ate the flesh and clothed themselves with the skins of wild 
beasts. Fruits and other vegetables of spontaneous growth added to 
their luxuries in summer. They were not long in discovering one 
fundamental law of nature, namely, that seeds deposited in the ground 
would grow, and produce similar seeds in larger quantities. But they 
knew nothing of the difference between one soil and another. They 
preferred the poorest, because it was easiest cleared, and, lying higher 
up on the ridges, it needed no draining. Here they made holes in 
the ground with sticks, and dropped the seeds a few inches below the 
surface. The rest was left to nature. If such cultivation gave them 
a two or three-fold crop, they were lucky. It happened much oftener 
that its growth was choked with weeds, or that it met with some other 
evil chance by which 

" The green corn perished ere his youth attained a beard." 

The planting and gathering were left to women and children ; the 
men despised such work, as being inconsistent with their honor and 
4 



44 MISCELLANEOUS. 

dignity. Hunting and fighting were the employments in which they 
found pleasure and glory, as well as food and clothing. But there 
was one man among them more thoughtful and observant than all the 
rest. He had watched the unfolding vegetation, from the sprouting 
of the seed to the maturity of the fruit, witli a keen perception of the 
whole marvelous and beautiful process ; and he devoted his attention 
to the rearing of useful grains with a pleasure which he had never felt 
in the excitement of the chase. He discovered the proper season for 
planting ; he noticed that weeds were unfriendly to the growth of his 
crops ; he found that mixing certain substances, such as ashes and 
decomposed leaves, with the soil, would increase its productiveness ; 
he learned that stirring the ground about the roots of a plant would 
make it thrive more rapidly ; he even got himself a kind of hoe made 
by some cunning worker in iron. Here was a philosopher, wliose intel- 
lectual stature rose high above that of his fellows. Being a patriot, 
also, and willing to do good for his countrymen, he conceived the 
thought of persuading them to quit hunting and win a surer living 
from the earth. At his request they assembled under the spreading 
oaks to hear his plans ; and this was the first agricultural meeting — I 
will not say the first on record, for I do not know that it is recorded, 
but certainly the earliest you ever heard of. The sage unfolded his 
new science to them, proving it, as he went along, by the facts of his 
own experience. The chase, he said, was a precarious business at 
best, while agriculture would be a sure and steadfast reliance. He 
told them that he himself, with the moderate labor of his own hands, 
had gained in a single season what would sustain life longer and better 
than all the spoils taken, during the same time, by the best ten of 
their hunters. This, he asserted, was true of an ordinary season, but 
sometimes the game disappeared entirely. His voice grew deeper, 
and its tones had a melancholy impressiveness, as he described the 
sufferings endured by them all, Avhen they, the strong sons of the 
wilderness, with their wives and children, became the prey of gaunt 
famine and wide-wasting pestilence. He concluded by promising that 
long lives of wealth and contentment should repay them for a general 
devotion of their labor to the cultivation of the earth. 

No cheers followed the speech, but, on the contrary, hoarse mur- 
murs of disapprobation came up from the multitude, swelling by de- 
grees into loud opposition. The new measure was attacked with all 
those shallow sophistries — those miserable fallacies so hollow and 
truthless — with which Conservatism arms her ignorant votaries. That 
solitary defender of truth was overwhelmed by the sort of arguments 
which are sometimes reproduced in modern political meetings and 
legislative bodies. Some accused him of a deep design upon their 
liberties. Some declared that he had opposed the nation in its last 
quarrel, and was, in fact, no better than a traitor. One set knew him 



MISCELLANEOUS. 45 

to be unsound in his religious faitli, and brought all the prejudices of 
superstition into the field against him. Others charged down upon 
hiai with a whole army of "illustrious ancestors," whose opinions, 
they said, were not like his. Others still there were who could see 
no objection to the man or the measure, but this was not the proper 
occasion — the time was out of joint. A portion of the crowd saw, in 
their much wisdom, that to quit hunting would enervate their frames 
and make them a race of cowards. Most powerful of all, and most 
profoundly wise in their own conceit, was the party who declared they 
would never consent to the enormous sacrifice of property required by 
such an innovation. They had invested a large capital in bows and 
arrows, and spears and traps, and knives ; and these would all be use- 
less if their future occupation was to consist in tilling the ground. 
There was one mighty man there — a blacksmith, who had gained 
great consequence, and earned innumerable skins, by making the 
weapons which were used in killing the beasts of the forest. He 
thought his craft was in danger, and he objected to agriculture for 
the same reason that Demetrius, the silversmith, afterward opposed 
Christianity. lie put an end to all discussion by uttering a catch- 
word with just enough of no meaning in it to make his friends unani- 
mous. He lifted up his big voice and cried out, " Crreat is Diana, the 
goddess of the bow and the patroness of hunters." The whole assem- 
bly in full chorus echoed the cry, and there was a great uproar. They 
would have stoned their prophet, for the sight of his meek countenance 
and the recollection of his blameless life exasperated their wrath ; but 
no one proposed it, and he was suffered to escape. 

This primitive apostle of agricultural science was defeated. He 
died in the melancholy belief that his people were destined to remain 
forever in barbarism. But not so. A truth had been spoken ; and 
truth can never die. It had gone down in the shock of the first en- 
counter with falsehood, but it was not crushed. Agriculture found 
an efficient champion wliere such a thing could least have been ex- 
pected. At the great meeting under the trees there was a little girl, 
whose parents had both died of starvation, and her two brothers had 
perished in the pestilence which followed the famine. Hunger and 
its concomitants had carried away every relative she ever had. She 
was gifted by nature with a quick intellect and a kind heart ; and her 
lonely condition had made her thoughtful and wise above her years. 
She listened to the words of the sage with beaming eye and flushed 
cheek, and lips parted in breathless interest. When she heard a pro- 
posal to furnish bread in abundance — bread at all times — bread which 
would always stay the ravages of famine, whether game was plenty or 
scarce — it roused every faculty of her mind. She knew the whole 
subject by heart as soon as she heard it explained. Henceforth she 
had neither eye nor ear for anything else. She gave herself up en- 



46 MISCELLANEOUS. 

tirely to the one great task of spreading agricultural science. Every 
day added to her own knowledge, and to the irresistible power with 
which she impressed it on other minds. She grew up with a lustrous 
beauty which seemed more than mortal. Her elocution, though gentle 
and persuasive, had all the vigor which springs from enthusiasm. She 
swayed those rude men with an influence they had never felt before. 
One after the other her countrymen threw away their bows and spears, 
and, with hoes in their hands, came and placed themselves under her 
tutelage. What she was unable to teach they learned from their own 
experiences mutually communicated. Soon all the hill-sides were 
covered with rich crops of waving grain, and the heavy timber began 
to disappear from the bottom-lands. Stately houses took the place of 
the mean hovels which the hunters had occupied. All the beasts of 
the forest which could be made useful to man were domesticated. 
The wild boar was captured and tamed for the sake of his flesh ; the 
sheep submitted to the shearer ; the ox bowed his shoulder to the 
yoke ; and the mouth of the horse became acquainted with the bridle- 
bit. The wild fruits were transplanted into gardens and orchards, 
and were totally changed under the influence of a careful culture. 
The sour grape became a delicate luxury ; the useless crab grew to be 
an apple ; the sloe expanded into a delicious plum ; and a nameless 
fruit, resembling the bitter almond, swelled out into a peach, with 
surpassing richness of flavor. New implements of husbandry were 
successively invented. The plow, the harrow, the sickle, and the 
scythe, each had its share in making the general prosperity greater. 

Agriculture once established became the parent of other arts. 
Navigation, commerce, and manufactures added to their wealth. 
Cities rose up filled with a refined population. The nation grew 
strong and powerful, and spread its dominion far and wide. The 
name of a Greek became synonymous with all that was great among 
men. Their descendants were painters and sculptors, who furnished 
the models for eveiy succeeding generation ; poets, whose sublime 
strains have been feebly imitated ever since ; philosophers and states- 
men, whose words of wisdom will be heard with reverence to the end 
of time ; warriors, whose deeds made Thermopylse and Marathon the 
watchwords of the free ; and orators — 

" Who wielded tlie fierce democratie at will, 
Shook the arsenal, and fuhnined over Greece." 

They were not unmindful of the benefactress who had given the 
first impulse to their high career. They assigned her a celestial 
parentage. Temples were erected to honor her. They believed that, 
though her home had long been fixed among the stars, she still pre- 
sided over their affairs, and pleaded their cause in the senate of the 
gods. They painted her figure as they imagined it, all radiant with 



MISCELLANEOUS, 4Y 

supernatural beauty — her hand bearing the horn of plenty, and her 
head garlanded with ears of wheat. They worshiped her with all the 
fervor of idolatrous veneration, and for a long lapse of centuries they 
knew not that the labors of the farm were blessed and rewarded by a 
greater deity than Ceres. To this day we keep her memory alive by 
calling the most useful of agricultural products after her name — the 
cereal grains. 

Such, we may suppose, was the transition state of agriculture — 
the passage from ignorance, barbarism, sloth, and hunger to system- 
atic industry, refinement, and plenty. It was only a beginning. It 
has been advancing somewhat ever since, though the arts which sprang 
from it have outgrown their parent. Numberless instruments for the 
saving of labor and time have been invented. Preparing the ground, 
sowing, harvesting, and thrashing may all be done now with machinery 
vastly improved. The character, nature, and value of many products 
are better understood. New breeds of stock are introduced. Chem- 
istry analyzes every soil, and shows precisely what elements it needs to 
increase its fertility. Highly concentrated manures are imported from 
the most distant parts of the world, and others are manufactured at 
home, out of substances which, once, were not only wasted, but suf- 
fered to reek their offensive odors on the atmosphere, and poison the 
health of the people. 

In the days of Augustus the fields of Italy (then the center of civ- 
ilization) were cultivated with an instrument resembling what we call 
a shovel-plow, only it seems to have had no shovel. The immediate 
predecessor of the patent plow, in use at the present time, was not 
much better. Most of you remember it — ''alow, long, rakish-look- 
ing craft," whose wooden mold-board had to be cleaned every ten 
rods, and its wrought-iron share and coulter taken to the blacksmith's 
shop at least once a week. 

The most important improvements yet made in agriculture have 
never been adopted here. A simple fact will show how much they 
have done for another country. Mr. Malthus, one of the profoundest 
thinkers of his day, calculated that the population of England would 
increase so rapidly, supposing its natural growth to be unchecked, 
that at the end of a certain time the soil would not yield a subsist- 
ence for the half of the people. For the other half starvation was 
the only prospect, unless a merciful Providence would kindly send 
war, pestilence, and plague to thin them out, and reduce their num- 
bers to a level with the quantity of food which they could produce. 
This dismal theory was believed by the foremost men in the world ; 
and it would have been true, if the land had not afterward been culti- 
vated with greater skill than before. But it turned out to be a total 
mistake. The population of England did increase as rapidly as Mal- 
thus predicted ; but the agricultural products of the country have in- 



48 MISCELLANEOUS. 

creased in a ratio two hundred and fifty per cent greater than the 
population. The people who were to have been starved long ago, or 
else prematurely cut oil' by millions at a blow, are living better than 
ever, with two and a half times as much food for each individual as 
they had when that theory was announced. 

With the system of cultivation practiced now in some parts of 
Euro[)e, the soil of Pennsylvania could be made to support fifteen 
millions of persons. There are large regions in Scotland, naturally 
poorer than any laiul avo have in this country, and under a sky far 
less genial than ours, covered all over with crops Avhich the richest 
valleys in the West would not be ashamed of ; and wheat is i)roduced, 
bushel for bushel, at a less expense than it is here. 

This is but the beginning of the end. All that has yet been done 
is as nothing com^jared to what may yet come. Hitherto agriculture 
has been traveling over rough roads in an old-fashioned, slow coach. 
8I10 is about to take the railroad, and, with a mighty train of her 
sister arts, she will go sweeping along. Not being either a prophet, 
or the son of a prophet, I have no right to predict anything. But 
one of these days Ave may be startled by some grand discovery, which 
will burst upon the world like the light of a new sun. Very sober- 
minded men live in the hojic of seeing such things. One of the most 
successful farmers in this State has declared his conviction that, bo- 
fore long, manures will bo so concentrated that a man may carry out, 
in his pocket-handkerchief, what Avill enrich the land as much as a 
hundred wagon-loads would now. This is very extravagant, no doubt, 
and (piitc as foolish as it would have been thirty years ago to prophesy 
of railroads, telegraphs, or daguerreotypes. About fifteen years since 
a person, whose name I have forgotten, said that he knew how any 
l)lant, from the tallest forest-tree to the tiniest blade of grass, could 
be nuule to grow four times as fast as it does naturally, and Avith 
almost no additional trouble. The Government refused to buy his 
secret, though the most distinguished men at Washington, to whom 
it Avas conlidentially revealed, certified their belief in it. If it be 
really true, it Avill be heard of again. It Avould be something to raise 
four crops a year instead of one. Actual experiments have repeatedly 
shown that a plant nuiy be made to germinate, rise above the ground, 
unfold its loaves, and grow to maturity so rapidly that it seems to the 
beholder like magic. Electrieity, I bolieve, is the stimulus used. A 
gentleman in England laid a Avager that ho could raise a dish of salad, 
fit for use, in less than three quarters of an hour from the moment 
Avhcn the seeds Avere deposited in the ground. He tried it, and Avon 
the bet. Professor Espy has proved, in a manner that admits of no 
denial, that CA'cn the Aveather may be controlled, and extensive rains 
be produced, by artificial means. It has been done, more than once, 
in our oAvn State. In Florida, Avhere the materials can be easily had, 



MISCELLANEOUS. 49 

it is no uncommon thing, in a dry time, for persons to get up show- 
ers at an liour's notice on tlieir own private account. Perhaps such 
facts as these are more curious than important. I mention them 
merely to show tliat there is something to hope for in the future, not 
from tliese things only, but others as yet not dreamed of in your phi- 
losophy. These are but the shadows which coming events have cast 
before them. The wave which will bear us onward has not reached 
us. But we feel it swelling beneath us, and see its lofty crest in the 
distance. In a little Avhile it will lift us nearer to the stars than we 
ever expected to be in this life. 

But how are agricultural societies to help this cause ? I answer, 
much, every way. No great change has ever been wrought in the 
habits of any people without a united effort. Political principles, 
moral reforms, religion itself, are spread only by societies. As a bun- 
dle of sticks tied together is stronger than any separate stick, so is 
the united effort of an organized body of men more powerful than any 
separate efforts which can be made by the individual members. When 
you have a building to raise, you do not invite your neighbors to come 
at different times and request each one to take a lift by himself. In 
that way they might break their backs without doing you any good. 
The building will never go up unless they all lift together. If agri- 
culture is to be elevated, it can only bo done by a simultaneous lift. 
At such a raising you can well afford to s})end all the time that is 
reqnired. 

The emulation excited by such a society, though very important 
and useful in its effects, is the least of its advantages. The county 
societies are in communication with the State society, and with one 
another. A good thought might be made to travel among them 
almost as fast as the telegraph could carry it, and a humbug exposed 
by one need never trouble the rest. All the societies in the State are, 
in fact, but one ; and you have the multiplied strength of all to aid 
you in any enterprise you wish to carry. But the great purpose they 
serve is seen in these periodical exhibitions. They are the best means 
ever yet invented of collecting the evidences and satisfying the people 
on the whole subject. The world is full of imposture. No man but 
a fool would change his mode of cultivation, or throw away his old 
implements for others, unless he Icnem that he was doing so for the 
better. How can he know unless he has an opportunity of examin- 
ing ? Seeing is believing. Here, all the successful experiments made 
in the whole county (and many of those made elsewhere) are annually 
brought together, and subjected to public inspection ; and for each 
one of them you have the sensible and true avouch of your own eyes. 
It was well said, in an address delivered here about six months ago, 
that we come here not to hear arguments, but to see facts, and look 
at demonstrations. 



50 MISCELLANEOUS. 

I ought to remind you that the State society is not a mere volun- 
tary association of private individuals, but a public institution estab- 
lished, protected, and guarded by law. Some of you may not know 
that the profits of its exhibitions have already made it rich. One of 
its officers told me, a few weeks ago, that it had about forty thousand 
dollars in its treasury. Forty thousand more were probably added 
last week at Philadelphia. It is proposed to invest this fund, or a 
portion of it, in the purchase of a large farm, and to establish a school 
there, at which scientific and practical agriculture will be fully taught ; 
and I presume without any exjiense to the pupil, except tlio labor he 
bestows on the farm. Half a dozen such schools may be established 
in the course of the next ten years, and it will, perhaps, be your fault 
if you do not have one in this part of the State. 

Every citizen has an interest in this institution — I mean the State 
society. You have a legal right to be represented in its councils, and 
should see that you are. I do not know, or believe, that it has yet 
been touched by any man who is not perfectly honest. Its active 
members are certainly far above suspicion. But its funds are swelling 
rapidly, and it seems very difficult in these times to have much treas- 
ure deposited anywhere so safely that thieves will not bi-eak through 
and steal. Somerset County — and every son that claims her for his 
birthplace or his abode may speak it with honest pride — has never 
produced a public defaulter, and her people never knowingly sanc- 
tioned an act of bad faith. From the highest to the lowest of her 
officers, every one, for sixty years, has settled a clean account. In the 
glory of this enviable distinction she stands almost alone. It is fit 
that such a county should be well represented wherever there is a com- 
mon fund that needs watching. 

There are some other topics which ought not to be overlooked on 
such an occasion as this. But I have already taxed your patience 
more than I intended. 

The future of this great country is full of exciting hope. But it 
depends entirely on the tillers of the soil whether that hope shall be 
realized or not. The neglect to improve our agriculture will be fol- 
lowed by the decay of all else that we ought to cherish in morals and 
government, as well as in the arts. Mexico has gone all to pieces — 
the property of her people is the spoil of robbers, and their liberty the 
plaything of a tyrant — simply because her agriculture is half a cent- 
ury behind the age. But for this she would have had an independ- 
ent and stable government to-day, and might have laughed to scorn 
the force we sent against her in the late war. A Avell-cultivated soil 
produces not only grains, grasses, and fruits, but another and far 
more precious crop — men — men who know their rights, and dare 
maintain them — a bold, honest, and intelligent people — the just pride 
and the sure defense of every nation. 



MISCELLANEOUS. 51 

On the otlicr hand, it startles the imagination to think what we 
may become in a few years if we adopt the improvements ah-eady 
made, and keep pace with those which are yet to be. We have the 
grandest field to work upon that was ever opened to the industry of 
man. A territory is ours stretching through every variety of climate 
and soil, from the wheat-lands of New England, lying, for half the 
year, four feet deep in snow, to the orange-groves of Texas and New 
Mexico, where winter never comes— valleys of unbounded fertility- 
mountains filled with inexhaustible wealth — lakes that spread out 
with a sea-like expanse — rivers, which make those of Europe seem 
like brooklets in comparison— everything, in short, made on a scale of 
magnificent grandeur. The child may now be born whose old age 
mil look upon the American people and see them three hundred mill- 
ions strong. Suppose such a population, doubling itself every twenty- 
two years and a half — living under a government of equal laws — mov- 
ing onward and upward with the energy which freedom alone can 
inspire — and aided by the highest science in making the most of 
their natural advantages. Who shall curb the career of such a coun- 
try, or set a limit to its deep-founded strength ? Milton himself 
never dreamed of a power so boundless, or a people so blessed, even in 
that enrapturing vision when he saw "a mighty and puissant nation, 
rousing herself like a strong man after sleep, and shaking her invin- 
cible locks," or like an eagle '' mewing her mighty youth, and kindling 
her undazzled eye at the full blaze of the midday beam ; purging and 
unsealing her sight at the fountain itself of heavenly radiance." The 
man who, with his senses open to the truth, would thwart such a des- 
tiny, or refuse his aid to accomplish it, is a traitor, not to his country 
alone, but to the best interests and highest hopes of the human race. 



"EELIGIOUS LIBERTY." AN ADDRESS TO THE PHRE- 
NAKOSMIAN SOCIETY OF PENNSYLVANIA COLLEGE, 
DELIVERED AT THE ANNUAL COMMENCEMENT, SEP- 
TEMBER 17, 1856. 

Gentlemex : I will call what I propose to address you upon, 
" Religious Liberty," using that designation for lack of a better one. 
I will try to give a reason why the Government should be impartial 
between persons professing different creeds ; and point out (briefly 
and imperfectly, of course) some of the evils which might result from 
any exercise of the civil power in matters of conscience. 

This is a subject on which we are so unanimously orthodox, that I 
shall be in no danger of shocking anybody's prejudices by speaking 



52 MISCELLANEOUS. 

the truth. If there be any errors among us (and on minor points it 
is possible there may be), they will easily be corrected by reference to 
certain fundamental principles which we all acknowledge. 

The importance of forming just sentiments on this subject in early 
life can hardly be overestimated. Without this no educated man can 
perform the duties he owes to society. If he misunderstands the rela- 
tions existing between the Church and the State, he can not possibly 
understand his own relations to either, and the chances are that he 
will be unfaithful to both. History is filled with examples of men 
who have belittled characters otherwise very great, and defeated all 
the high purposes of their mission to the world, simply by narrowness 
of soul in this one particular. 

We habitually use certain words and phrases, imported from the 
other side of the water, which are calculated to mislead us. One of 
these is the word toleration, as applied to matters of faith. It implies 
that we derive whatever religious freedom we have from the conces- 
sions of the government ; that the king in a monarchy, and the ma- 
jority of the people in a republic, permit those who differ from them 
to live unmolested. This notion is wholly untrue. It is not a politi- 
cal privilege, but a natural, absolute, and indefeasible right, which 
human government may jirotect but can not either give or withhold. 
If we arc permitted to enjoy it, our thanks are due, not to any popu- 
lar majority, but to Him who gave us being. 

'■'' Deus nobis Jiacc otia fecit.'''' 

Again, we hear it continually said, by the wisest men among us, 
that Christianity is part of our common law. No one has ever at- 
tempted to explain hovf this is to be understood. The law and the 
gospel are, in fact, wholly dissimilar in nature and essence, in origin, 
operation, and object ; as different as the purity of the one must neces- 
sarily be from the coarse and vulgar machinery of the other ; so differ- 
ent, that they never can be mingled together without corrupting both. 
Christianity, they tell us, is a part of our law ; that is, we have 
adopted the rules of the divine Lawgiver to regulate our civil con- 
duct, but, finding them very defective, we have made certain valuable 
additions. The Connecticut settlers resolved that they would live 
according to the laws of God, until they had time to make better. So 
we profess to have taken a system formed in the councils of Omnis- 
cience, which came from the hands of its Author round and perfect 
like a star ; filled with all forms of moral beauty, and radiant with 
miracles of light ; and we boast that we have adopted this S3'stem with 
such amendments as our superior wisdom has found it necessary to 
make. The proposition is blasphemous ; and every Christian man 
should frown upon it. 



MISCELLANEOUS. ' 53 

We have merely quoted this maxim from the English judges, and 
gone on repeating it ever since, without inquiring whether it Avas true 
or false. It never was true, even in England, in any just sense of 
the word ; hut it was not there, as it is here, a d*ad letter ; for in the 
evil days of that nation it had a hloody and a terrible meaning. AVhat 
the king and Parliament, and a favored portion of the priesthood, 
chose to call Christianity, was a part of tlieir law enforced Avith the 
utmost severity. But Christianity, surrounding itself with the corpo- 
ral terrors of the fire, the gibbet, and the pillory, was as different as 
possible, in its whole spirit, from the pure and peaceable system first 
taught on the shores of Galilee. It was readily recognized by those 
persons whose interests it served, or whose passions it gratified ; but 
not by those who suffered under it. The bishop, fattening on tithes, 
thought that law and religion were convertible terms ; but the peasant 
felt that thev were united in robbing labor of the bread it had earned. 
When Bonner used the law for the destruction of heretics, he pro- 
nounced it most Christian ; but the youngest of John Eogers's nine 
small children could have told him, by instinct, that it was devilish. 
Cranmer, while he was burning his enemies, thought that English law 
and true religion meant one and the same thing; but he probably 
changed his opinion when it came his own turn to be roasted under 
that same law. The maxim that Christianity is part of the law was 
enunciated by Jeffreys, and other judges like him, with savage exulta- 
tion, and with its sanction they rolled their garments in blood ; but 
Bunyan, confined fourteen years in prison, or Baxter, Avhipped at the 
cart's tail, could see in such law nothing like the Christianity of the 
"Pilgrim's Progress," or the '"Saint's Rest." 

The manifest object of the men who framed the institutions of 
this country, was to have a State toitlioiit religion, and a Churcli with- 
out politics — that is to say, they meant that one should never be used 
as an engine for any purpose of the other, and that no man's rights in 
one should be tested by his opinions about the other. As the Church 
takes no note of men's political differences, so the State looks with 
equal eye on all the modes of religious faith. The Church may give 
her preferment to a Tory, and the State may be served by a heretic. 
Our fathers seem to have been perfectly sincere in their belief that the 
members of the Cliurch would be more patriotic, and tlie citizens of 
the State more religious, by keeping their respective functions entirely 
separate. For that reason they built up a wall of comj^lete and perfect 
partition between the two. 

Their theory was one of absolute and unlimited freedom — a free- 
dom ''as broad and general as the casing air." It was their aim to 
take away every possible pretense which could be made by any human 
being to erect himself into a tribunal for the purpose of deciding mat- 
ters supposed to be at issue between his fellow-creatures and their 



54 MISCELLANEOUS. 

God. They thought they had succeeded in guarding the rights of 
conscience so that no majority would ever invade them. They gave to 
Bigotry no possible chance for thrusting herself into civil affairs with- 
out doing so in flat rebellion to the Constitution. 

This liberty to think and do what they please extends to all 
manner of wrong-headed people, so long as they do not interfere with 
the rights of others. The widest departure from the faith of the 
majority is permitted as fully as the most trifling difference of opinion. 
The Baptist may safely confess his belief in immersion, and the Quaker, 
with equal impunity, may disregard all outward forms. The Catholic 
may celebrate the mass, the Jew may eat tlie passover, and even the 
Mohammedan may turn his face toward Mecca when he prays. Some 
, very good men are disgusted at a liberality so excessive that it stands 
neutral between the purest truth and the grossest error. Their right- 
eous souls are vexed from day to day by the fact that their Govern- 
ment is such a Gallic as to "care for none of these things." If it be 
wrong, it can not now be mended. For those who are not content 
with it there is no help, except in emigrating to some place where 
persecution is not forbidden; and, even then, their comfort may 
depend very much on whether they are jiermitted to inflict the perse- 
cution, or compelled to suffer it. A British officer, just returned from 
India, was asked what he thought of lion-hunting. "The sport," 
said he, "is excellent as long as you are hunting the lion ; but it gets 
rather disagreeable when the lion begins to hunt youP 

Heterodox people in this country are protected not only from 
burning, hanging, maiming, and imprisonment, but it is provided 
that even political disabilities shall not be imposed on them for their 
erroneous faith. One sect shall have no advantage whatever over 
another. You shall not reward the true believers by giving them all 
the public employments, and punish heretics by a total exclusion. 
There shall be no religious test as a qualification for office. Make 
what other test you please. Exclude a man, if you like, for his 
political sentiments, or his moral conduct, for his wealth or his pov- 
erty, for his youth or his age ; make war on him for the color of his 
hair, the length of his legs, or the shape of his nose. But let him 
alone about his religion : that is consecrated ground ; that is a point 
on which the Constitution has refused to trust you with one particle 
of power ; and wisely, too, for mortal men are not fit to be trusted 
with such power ; they have never had it without abusing it grossly. 

These obligations can not be judicially enforced. A private citi- 
zen can not be indicted for violating the Constitution ; perhaps not 
even for a consj)iracy to violate it. If he swears to supj^ort it, the 
oath is promissory, and therefore to break it is not legal perjury. It 
is only for gross, willful, and dishonest abuse of power that even a 
public officer can be impeached. The penalties of treason are never 



MISCELLANEOUS. 55 

incurred except by those who levy actual war against the Government, 
or adhere to a foreign enemy. Our fundamental law is a series of 
rules without any sanction, except in the forum of the conscience. 
Those citizens, therefore (if there be any such), who have no con- 
science, no sense of duty, and no shame, may disregard it as much as 
they please, without any fear of the penitentiary or the halter. But 
the fear of punishment is not necessary to make a true man faithful 
to the Constitution that guards his rights, and, if he swears to sup- 
port it, he will keep his oath at all events. 

If you should haj)pen to be convinced (as you probably never will 
be, for no man can prove it) that this prohibition of a religious test 
is addressed only to the Legislature, and not to the people or their 
appointing agents, the question will then arise, Whether it is right to 
evade the command by any sort of indirection ? There are men — 
perhaps not so many as there were a short time ago — who consider it 
altogether unlawful to effect a prohibited purpose, even by means 
which are not specifically forbidden. It is impossible to regard that 
morality as sound which would trifle and palter with the great prin- 
ciple embodied in a fundamental law whenever it can be done without 
violating the letter. An American citizen, who is not willing to sup- 
port his government, as a sincere and earnest man supports what he 
loves and believes in, should renounce his allegiance, and wage against 
it a war of open hostility. It is better and braver to batter down the 
wall than to introduce the enemy by means of a wooden horse. Dolon 
was no friend of Troy any more than Ajax or Achilles ; and you will 
agree with me in saying that he was an infinitely meaner man. When 
the foe reaches your citadel, no matter how he gets there, you may 
sing "Fuit Ilium!" for the glories of your empire will have passed 
away. 

The establishment of religious freedom in America was, to some, 
extent, a necessary consequence of the time and circumstances in 
which the country was settled. All the colonies were founded during 
the seventeenth century, and that was precisely the time when perse- 
cution was committing its most frightful ravages in Europe. The 
savage cruelty with which the contest of opinion was carried on by all 
parties, the judicial murders and the wholesale slaughters which 
marked the pathway of political power, are the saddest pages in the 
history of the human race. Bigotry rode ramj)ant and red over all 
lands. In the fairest portions of France the whole population was 
suddenly and treacherously put to death or scattered abroad in wild 
dismay, like flocks of sheep attacked by the wolves. Philip II, in a 
decree of three lines, pronounced the doom of death on three millions 
of innocent persons in Holland ; and that doom was executed with 
remorseless rigor as rapidly as the Duke of Alva, with a large army, 
could execute it, in a country already subjugated and helpless. The 



5 6 MISCELLANEO US. 

fields of Germany were saturated with blood ; every one of her great 
cities was a burned and blackened waste ; two thirds of her people, 
men, women, and children, fell beneath the scourge. The best and 
bravest of Ireland were murdered three times over, and nearly every 
acre in the island was confiscated as often. The adherents of the two 
leading forms of Christianity were not the only parties to the strife. 
In England and Scotland, as well as in Germany and Switzerland, the 
people lashed themselves into a frenzy on still narrower questions. 
Prelatists and Presbyterians, Baptists, Covenanters, and Muggletoni- 
ans, were convulsing the public mind with disputes between them- 
selves. They committed on one another every form of legalized mur- 
der, and all varieties of atrocious cruelty. Burning, beheading, and 
hanging, as well as imprisonment, branding, and maiming, were in 
universal fashion. Men of the most fervent piety, the highest talents, 
and the most blameless lives, suffered inflictions so cruel and so igno- 
minious, that, even at this distance of time, they can not be thought 
of without unspeakable indignation. 

It was from these scenes of terror, conflagration, blood, and tears, 
that the earliest settlers of America fled. Most of them had suffered 
more or less for their faith, and all of them ought to have known that 
justice and sound policy were both in favor of free conscience. But 
this proposition, plain as it seems to us, was then very generally repu- 
diated. The intellect, indeed, comprehends it readily enough, but in 
all ages the heart of man has learned it slowly and reluctantly. It is, 
therefore, no matter of surprise that some of the colonial rulers were 
almost as blind and ferocious as the ojipressors they had left behind. 
But among them were three immortal names that will be venerated as 
long as the earth contains one friend of human liberty. These were 
Cecilius Calvert, William Penn, and Roger Williams — a Catholic, a 
Quaker, and a Baptist. There was no prince or statesman in all 
Europe that was worthy to stoop down and unloose the latchet of 
their shoes. Theirs was the greatest improvement in the science of 
government that was ever made. It was a new era of peace on earth 
and good-will to man, fit to be celebrated on the harps of angels. 
You may talk of other compromises ; but the greatest compromise of 
all was that by which the fighting sects agreed to disarm and cease 
their barbarous hostility. The great men I have named were not only 
our benefactors, but the profoundest gratitude is due to their memory 
from the whole human race. Their example has shamed the civilized 
world, if not into freedom, at least into peace. 

Lord Baltimore was, in some respects, a most fortunate man. He 
was especially happy in having a father to lay out his great work, and 
a son of rare ability to carry it on. To have been the author of the 
first statute that ever was passed to secure entire freedom of con- 
science, gives him the most enviable place in the world's history. His 



MISCELLANEO US. 5 7 

high qualities of mind and heart made him worthy of that pre-eminent 
distinction, as a single incident will show. A successful rebellion, or- 
ganized bj those whom he had slieltered from the persecution of one 
another, deprived him for a time of his power, and the first thing they 
did was to persecute the church to which he himself belonged. When 
he recovered his authority he must have been tempted to retaliate. 
But with a greatness of mind which never deserted him, and with a 
fidelity to his own convictions which nothing could shake, he reorgan- 
ized his government upon its former basis of equal protection to all. 

The last and the greatest of English historians — one whose skill in 
praising what he admires and depreciating what he dislikes is unsur- 
passed — has turned his powerful magnifying-glass upon William Penn; 
and he announces that he has discovered on that "bright particular 
star" some spots never seen before. It is said that a famous astrono- 
mer, once upon a time, surprised the scientific world by declaring that 
he had discerned an elephant in the moon ; but, upon close examina- 
tion, it was ascertained that the elephant supposed to be in the moon 
was only a fly in the philosopher's telescope. It may be that there 
was a fly in the instrument through which Mr. Macaulay looked at 
the character of Penn ; and it is shrewdly suspected that some such 
insect might have crept in there about the time when the Quakers 
voted against him at the Edinburgh election. Be that as it may, this 
assault upon Penn's fame comes too late in the day. The Judgment 
of the world has been pronounced upon him long ago : and his malign- 
ers have no right to a new trial now. It is in vain to say that the 
decision was based on defective evidence. No man of his time was 
better known. From his early youth to his old age he Avas a man of 
mark, and lived constantly in the eye of the public, surrounded by 
enemies ever ready to put the worst construction upon his conduct. 
He went through the furnace without the smell of fire on his gar- 
ments, and left behind him a character for moral virtue on which 
malice itself could fix no stain. In the bloom of his youth ; with all 
the freshness of health and hope upon his heart ; when worldly ambi- 
tion was spreading its most seductive allurements around him, he gave 
up rank, fortune, friends, and became an outcast from the house of 
his father for the sake of communion with a despised and persecuted 
sect. In obedience to his conscience, and without other possible mo- 
tive, he suffered insult and scorn and imprisonment with a fortitude 
that would have honored a Christian martyr in any age. That he was 
a man of consummate ability is proved by all his public acts, speeches, 
and writings. Even the words which are reported to have fallen from 
him in private conversation were so fitly spoken that they are "like 
apples of gold set in pictures of silver." With one consent the wise 
and the learned of all nations have agreed that, as a lawgiver, he was 
the greatest that ever founded a state in ancient or modern times. 



58 MISCELLANEOUS. 

He was not the very foremost, but he was among the foremost, to dis- 
claim all power of coercion over the conscience. This alone, if he had 
done nothing else, would have marked the tallness of his intellectual 
stature ; for, when the light of a new truth is dawning upon the 
world, its earliest rays are always shed upon the loftiest minds. He 
not only received this truth into his own heart, but he devoted him- 
self with tireless energy to the propagation of it. Long before he 
turned his attention to the New World he traveled through Germany 
and Switzerland, scattering the seeds broadcast wherever he went. 
They fell upon good ground, and in time bore an abundant harvest. 
Ilis visit there was long and vividly remembered by a people who were 
sick of strife, and longed for the peace which an impartial government 
alone could give. Years afterward, when they heard that the young 
Quaker, who had so felicitously explained the principles of civil and 
religious freedom, was become a sort of king beyond the Atlantic, an 
intense desire to join him pervaded all classes and sects. They rushed 
to the seaports by thousands ; there was not shipping enough to carry 
them away ; Continental Europe had never seen such an exodus before. 
The emigration from England and Ireland was almost equally great. 
Attracted by his fame, men came from all parts of the world, and 
came in such numbers that in fifteen years Pennsylvania was the rich- 
est and most populous of all the colonies, though some of the rest 
were nearly a hundred years older. Under the beneficent influence of 
Penn's institutions the various races, differing in religion, manners, 
and language, were blended into one homogeneous mass ; and their 
mingled blood now flows in the veins of a population — let me say it 
proudly, for I can say it without the least fear of contradiction— a 
population better and wiser, truer-hearted, and clearer-minded, than 
any other that lives on the surface of this great globe. 81 monumen- 
tum qtieris, circumspicc. There is his monument— look around if you 
desire to see it. His name is inscribed on this mighty Commonwealth. 
Day by day it rises higher and stands more firmly on its broad founda- 
tion—and there it will stand forever—" Sacred to the memory of Will- 
iam Pe7i7i." It is not possible that such a man can need any defense 
against one who charges him with a want of common integrity. If 
there be any character besides that of Washington which is beyond 
the reach of so paltry a slander, it is Penn's. That he was not habit- 
ually honest and upright is an historical proposition as absurd as it 
would be to say that Julius Csesar was a coward, that Virgil had no 
poetic genius, or that Cicero could not speak Latin. Nay, he was 
something more than an honest man ; he was a philanthropist, who 
gave all he had and all he was— time, talents, and fortune— to the ser- 
vice of mankind. The heir of a large estate, the founder of the great- 
est city in North America, the sole owner of more than sixty thousand 
square" miles of land, he never spent a shilling in any vicious extravar 



MISCELLANEOUS. 59 

gance, but his large-handed charities so exhausted his income that, in 
his old age, he was imprisoned for debt. He had the unlimited con- 
fidence of a monarch whose favor an unscrupulous man would have 
coined into uncounted heaps of gold ; but he left the court with his 
hands empty; and whosoever says they were not clean as well as 
empty, knows not whereof he affirms. I say again that all attacks 
on such a character are vain, and all defense unnecessary. The set- 
tled, universal feeling of reverence for his memory will not be dis- 
turbed, or one whit diminished, by a doubtful accusation, fished 
up from the oblivion of a hundred and fifty years, no matter how 
attractive the rhetoric in which the writer of a partisan history may 
clothe it. 

The other man of that illustrious triumvirate is also entitled to 
your special notice. Eoger Williams was a hero in the highest sense 
of that much-abused word. Of all the men that ever mingled in the 
good fight for freedom of opinion, he carried the most glittering 
weapon, fought the hardest battle, and won the most brilliant tri- 
umph. Single-handed and alone, he strove against a tumultuous 
throng of enemies, who pressed upon him in front, and flank, and 
rear. And never yet was hero so magnanimous in victory, or in ad- 
versity so calmly steadfast to his cause. His character is invested 
with that peculiar interest which we all feel in a great injured man, 
whose merits are the glory, while the wrongs he suffered are the 
shame, of the times he lived in. His intellectual vision saw the truth 
at a glance, and, his honest heart accepting it without hesitation, 
pushed it at once to its ultimate consequences. His eloquence was 
remarkable for its clearness and fervor ; he had a steadiness of pur- 
pose which opposition only made firmer, and no dangers that ever 
thickened around him could tame the audacity of his courage. Thus 
gifted, he came to Massachusetts in the vigor of his early manhood, 
and immediately took up the defense of what he called the " sanctity 
of conscience." It would have been a safer employment to denounce 
Mohammedanism in any part of Turkey. Mary Fisher made a fair 
trial of both. She went to Boston and she went to Constantinople. 
She publicly administered to the Sultan and to the elders of the Puri- 
tan church the rebuke which, in her opinion, was needed by each ; 
and her report of the comparative treatment she received gives a 
decided preference to the Turks. The intrepid spirit of Williams, 
however, was not to be quelled ; his denunciation of tyranny became 
more unsparing in proportion as the threats against himself grew 
louder. Such a man could not fail to have friends among the people ; 
but those who wielded the political power and the ecclesiastical influ- 
ence of the colony were against him in a compact body, and hated 
him with that bitter intensity of hatred which religious bigotry alone 
can inspire. At first they tried him in debate, but that was soon 
5 



60 MISCELLANEOUS. 

ended ; for his irresistible logic went through and through their flimsy 
sophistry, as a battering-ram would go through a wall of pasteboard. 
It was not at all safe to silence him as they silenced Eobinson, Mary 
Dyer, and others, by hanging him ; for his character was known and 
honored, and 

"... Ills virtues 

Would plead like angels, trnmpet-tongued, against 

The deep damnation of his taking off." 

But they anxiously took counsel among themselves how they might 
destroy him without incurring a responsibility too great. They made 
a law on purpose to catch him : Whosoever would deny their right to 
punish men for having a creed different from theirs should be ban- 
ished. They disfranchised a town for giving him shelter ; they con- 
fiscated the lands of a congregation for hearing him preach ; they 
maligned his character in every possible way ; they so poisoned the 
mind of his own wife that even she for a time deserted him. Then — 
when he was all alone — when every one Avho should have aided him 
was cowed into submission — when no friend dared to stand up beside 
him — when his life's life had been lied away — then they set their 
human bloodhounds upon him, and droA'C him forth to perish in the 
wilderness. For fourteen weeks, in the bitter depth of winter, he 
knew not, as he himself declared, "what bread or bed did mean." 
But the Indians remembered him well as the bold, just man, who had 
more than once interposed himself between them and the wrongs 
meditated against them by the whites. His quick intellect had 
already caught their language, and he spoke it with a fluency which 
surprised and flattered them. Miantonomoh, the chief of the Narra- 
gansctts, received him with open arms, loved him like a brother to 
the last, and gave him a large tract of his country, including a beauti- 
ful island in the sea. There he became the founder and lawgiver of a 
new province, which was, in reality and in truth, an asylum for all 
who were oppressed. 

It is impossible to give any just idea of this singular man (or his 
opi^oncnts either) without calling your attention to a subsequent fact. 
Not long afterward, Massachusetts was threatened by a danger which 
appalled the bravest of her defenders. The Indians were burning for 
vengeance. All the neighboring tribes, and those who dwelt in the 
far interior, were forming a league to exterminate the colony by an 
indiscriminate massacre of all ages and sexes. On the day when this 
terrible truth was realized at Boston, the name of Eoger Williams 
trembled upon every lip. His influence could dissolve the league ; 
except him there was no power on earth to save them. But would he 
do it ? Strange to say, they never doubted for a moment that he 
would fly to their rescue. They had basely injured him ; but they 



MISCELLANEOUS. 61 

knew that Christianity had lifted him far above the vulgar feeling of 
revenge. It was perilous, too, to rush alone between the enraged 
savages and the victims of their wild wrath ; but in that noble nature 
there was no taint of selfishness — no touch of craven fear. The breath- 
less messenger of the Massachusetts authorities reached him at his 
island home in a stormy winter's night. He heard tlie imploring 
appeal, and, without a Avord of reproach for all they had made him 
suffer, and without a moment of unnecessary delay, he girded up his 
loins and started on his dangerous mission. lie reached the main- 
land in a crazy boat, and tlience he bent his steps through the track- 
less forest to the camp of the Narragansetts, where the hostile chiefs 
had already assembled. They were fairly infuriated by his presence. 
Ilis throat was not safe from their knives for a moment, protected 
though he was by the influence of Miantononioli. Nevertheless, this 
bold apostle of brotherhood and peace stood up with his life in his 
hand, surrounded by raging savages, and, for three successive days, 
pleaded the cause of their enemies and his own with all the pathetic 
eloquence of which he was so great a master. He prevailed at last ; 
the league was dissolved ; and Massachusetts was saved. 

It would be unjust to the memory of the "Pilgrim Fathers" not 
to mention what gratitude they bestowed on tlieir illustrious benefac- 
tor. They showed it not in words but in actions. Somehow they 
got hold of his fidus Achates — his devoted and faithful friend Mian- 
tonomoh. Ilim they delivered up to a rival chief with the distinct 
and clear understanding that he was to be basely and brutally mur- 
dered ; and the deed was done before the eyes of tlieir commissioners. 
A confederation of the New England colonies was formed for mutual 
protection against the savages, but they refused to admit Rhode 
Island, and thus did all that in them lay to expose Williams and his 
people to that very fate from which he had saved them by an act of 
heroic magnanimity, such as no other man in millions would have 
performed. They tried to extend their tyrannical jurisdiction over 
the free conscience of his province, and, to prevent it, he was com- 
pelled to cross the Atlantic and get a charter from the Parliament. 
When he returned he landed at Boston ; and, though the hearts of 
the common people leaped to the greeting of their great deliverer, 
his old persecutors scowled on him with all the malignity of former 
days. 

Such was Eoger Williams. How grandly his humane and gener- 
ous spirit contrasts with his contempoi-aries of the opposite school, 
with their sour tempers and their evil passions nursed by habits of 
persecution ! History has painted no picture of manly virtue which 
stands out in such clear and beautiful relief from the gloomy back- 
ground of a dark and bigoted age. The American who can hear his 
name without emotions of respect and gratitude, like the man 



62 MISCELLANEOUS. 

"... who hath no music in himself, 
Is fit for treason, stratagem, and spoils: 
Let no such man be trusted." 

The principles of Williams, Calvert, and Penn are necessary, not 
less to the prosperity of the Church, than to the peace and safety of 
the State. The man who would enforce religious truth by penalties 
of any kind, is not only cruel and inhuman, but he is **a fool as gross 
as ever ignorance made drunk." He descends from his vantage- 
ground, disgraces his cause as well as himself, and makes his adver- 
saries hug their errors with more affection than ever. The logic of 
blood is just as powerful for the wrong as it is for the right, and 
truth, in such a contest, is disarmed of her intrinsic and natural 
power. By a thousand arguments you can show that Christ was God, 
and Mohammed an impostor ; but the rack will prove as much for 
one as the other. It is possible to convert the most obstinate misbe- 
liever by an appeal to his reason, but what progress will you make by 
burning his church ? 

The experiment has been thoroughly tried both ways, with what 
success you know very well. When the Church had no sword but 
the sword of the Spirit ; when her disciples knew nothing of persecu- 
tion, except what they suffered, her influence was irresistible. But 
on the evil day when she joined herself to political power, her "invin- 
cible locks" were shorn away, and she Avas comj^asscd round with 
danger and darkness. Christianity, like the oak, will thrive only in 
the open air. It grows and flourishes, and strikes its roots deep into 
the earth, and stretches its branches to the skies, and spreads them 
over the plain, while the free winds are permitted to play among its 
leaves, and the sunshine of heaven to settle on its head. But it never 
was meant for a hot-house plant. It withers and dies when placed 
under the forcing-glass and exposed to the stimulus of an artificial 
heat. 

The Author of the Christian system has lent no sanction to any 
deed of hatred or violence which has been done in his name. When 
the prophet Elijah came out from the cave and stood on the mount- 
ain, there passed in succession an earthquake, a fire, and a mighty 
wind, but the Lord was not in either. After these had gone by, there 
came a still, small voice, and Elijah knew that the Lord was there. 
In the history of the Christian world we have seen the earthquake, 
produced by the encounter of nation with nation, the fire of legal 
persecution, and the windy storm of political disputation. It needs 
no inspired prophet to tell us that in none of these was there any sign 
of His presence, who rules in justice and mercy. If he is not heard in 
the still, small voice that speaks to the reason and the conscience, 
then are we without God in the world, and consequently without 
hope. 



MISCELLANEOUS. 63 

Let us not be self-complacent enough to suppose that we are in no 
danger of being tempted to repeat what others have done before us. 
This age is wiser than former times. We know more, but I am not 
sure that we feel any better. American, Republican, Democratic 
nature, is still human nature, and has its full share of old Adam. 
Everywhere and at all times the spirit of persecution is the most in- 
sidious as well as the most deadly foe to public tranquillity, safety, and 
peace. It may steal imperceptibly over the popular heart at any mo- 
ment, for its approaches are always noiseless and rapid. There is 
nothing less alarming in infancy, nor nothing more terrible in ma- 
turity. Its first whisperings are as gentle and soft as the summer 
breeze, but its murmurs grow louder and stronger and wilder, until 
you have it in the crash and roar of the tempest. The whole heavens 
may be darkcDcd to-morrow by a cloud which to-day is not bigger 
than a man's hand. 

Facilis descensus Averni. If our judgments could once be ob- 
scured by a strong feeling of hatred and contempt for those who pro- 
fess a false faith, how easy might it be to convince us that there is 
nothing either legally or morally wrong in using our numerical power 
to strip them of their share in the civil government ! We do that, 
and then come slander and insult of the injured party, by way of 
excuse for the injury. Resistance — perhaps retaliation in some form 
or another — would almost certainly follow ; and this would be an 
excuse for still further inflictions. The combat deepens every hour ; 
our hatred grows stronger and more intense at every stage of the con- 
test, until we are completely blinded by it ; and 

" Masterless passion sways iis to the mood 
Of what it likes or loathes." 

The final issue would be the enactment of inhuman laws to suppress 
the religion of the minority, or else inhuman outrages — riot, blood- 
shed, incendiarism — perpetrated in defiance of law. **You begin," 
said Roger Williams to his opponents at Boston, "you begin by revil- 
ing your erring brethren : you will end by taking their lives ; for you 
are on a path where there is no halting-place." He knew the philoso- 
phy of the subject exactly. It is idle folly to let loose the war-dogs 
of religious bigotry, hiss them on their victims, and then expect them 
to be content with barking. It is their nature to tear the flesh, and 
mangle the limbs, and lap the life-blood ; and if you desire them not 
to do so, keep them chained up. 

Besides this natural tendency of the passions, the reason of the 
thing is altogether opposed to stopping after you begin. There is an 
argument in favor of killing heretics which you can never answer, 
except by totally denying all power to molest them. If it be our 



tVl M/SCELLANEOCrS, 

mission to prv^iv\i::5\to ivligiovis truth, as wo understand ii. In punish- 
ins; thoso who ivfuso to juvopt it, whv do wo tritlo with tl\o groat work 
intrustiHl to our hands ? If wo aiv ivspousiblo for tho faith of others 
as well {IS our own, lunv daiv we aUow the God of tho univoi'so to be 
moeked and insulted by n false worship ? We know verv woll that 
such emu's aiv not to Ih> emdieatevl exeept by destivying all who be- 
lieve them. Nothing but the n\ost thoixnigh work will erush thoni 
out. If such bt^ the servi^v that Oiod nnpiiivs of us, let us perform it 
as men who know that we are working under our groat Taskmaster's 
eye. SuWue the sentiment that might make you ivvolt against duty. 
Oirvl every man his swoixi upon his thigh ; go thixnigh the oan\p and 
slay every man his bn^tlier and his friend. FetH.1 the eagles with tho 
flesh of all who daiv to misbelieve ; give their rvu^fs to the tlan\es. and 
let not one stoiu^ of their ehuivhes nunaiu upon another. This ivason- 
ing is iHU'feotly soutul. if you ovuioinh^ the pivmises. Oneo let go your 
hold upon the true d^x^trine of jn'^rfeot equality, and logio. as woll as 
pjission, will carry you irresistibly to the other extivmo. 

The tendoney of bigv^try to run into wild extnnaganoe is partly 
aootnint<\l for by its singular gullibility. Its oai^ioity for swallowing 
fcUsohixni is aWolutely unlimited. The most monsti\»us CiUnmuies 
that human nuMxdaoity ever forgvd woiv piled upon the primitive 
Christians at Komo. and were believed without a spark of evideneo — 
nay. in the face of overwhelming evideneo to the oontiury — not merely 
by the unthinking multitude, but by such an historiai\ as Tacitus, by 
such a philosopher as Pliny, by such a primv as Tnijan. We have no 
aciHMint of any |Hvple moiv industrious, upright, and pmv in their 
lives than the Vaudois, the Israel of tho Al^v^. as their tiorman histo- 
rian has called them. Yet the French monarch and his ministers 
listent\l with grotnly ears to the lies which aecustHl them of the n\ost 
disgusting vicvs and the most horrible crimes. The ** IVpish plot " — 
a tTansp.*»rent fabrication which any child might have seen tlm>ugh — 
for years kept the n\inds of the English ]x\->ple in a ctMivulsion of 
terrv^r aiid alarm. The actmsvHi pirties wert^ c^n-eivd with a public 
inf:uny from which no pi\H>f of their innociuuv could relieve them, 
while the jx»rjunHl informers — such nuui as Gates. IVdloe, and Dan- 
gertield. the most loathsome of human Ivings — were caressed and 
fondled as the very darling-s of the nation. If you tind a mai\ thor- 
oughly Siitunitod with bigotry and hate against any particular sect, 
you may readily make him believe that its members arc all corrupt, 
its ministers the spies of some foreign enemy, its churches the deposi- 
taries of hostile arms, and its female scl\ools places whoiv the most 
abandoned licontiousness is systematically taught. You need not 
trvnible yourself to give him prv>ofs, and you n^vd not fear any couu- 
ter-prvx>fs — he will believe it anyhow. 1 kiunv more than one sh.irp 
man who thinks that Charles Cjirn^ll was an enomv of American indo- 



MISCELLANEOUS. 65 

pendericc, and I have beard the mo-jt implicit confidence in Maria 
Monk exproEK/id by a Ktatf^Hrnan who atpiren t^j the pre?fidency. 

Thin evil r-pirit of per»er;utiorj i.H indeed very far from confining 
itaelf t^> the ignorant and deprave<L It ha=j oftc-n brutalized the kind- 
liest natures, and under it-* influence the man of geniua driveb like an 
idiot. I think no one can rea^l the writings of St. Franci.=} Xavier 
without being Ujuchcd by the deep t^jne of hi.H j^er-ional piety, yet he 
was the author of that diabolical invention, the Sj/aniHh Inquisition. 
That Calvin waa the profoundest thinker of his age ever}body admits ; 
t^j deny the sincerity of his devotion would be simply absurd ; but his 
name is ins^;parably linked with one of the foulest murders that ever 
blackened the face of the »ky. Even the matchless intellect of Milton 
was subdued to the service of the same demon. When all hu facul- 
ties w(jr(: xiAXAfA in defense of free conscience, there waa one clasa of 
his opponents that he gave up without hesitation to the sword and the 
fagot. The great heart which conceived all the glories of the ''Para- 
dise Lost," ha^l no drop of pity in it for the sufferings of the Irish. 
The loftiest hymn of his praise was sung to the man who earned the 
** curse of Cromwell" through that devoted island. 

It not only nourishes those violent passiona which lead to blood- 
shed and tyranny, it is almost equally objectionable for its meaner 
vices of treachery and fraud. It seldom ajiproaches you in fair hostil- 
ity, with its weapon drawn and its visor up ; it hides its hideous face 
under some plausible disguise, and surrounds itself with all the ma- 
chinery of false pretenses. It takes its adversary by the beard and 
affectionately inquires, "Art thou in health, my brother?" while it 
Btabs him under the fifth rib. Charles IX invited the leading Protes- 
tants of his kingdom to a royal wedding, and took such order for their 
entertainment during the night that their mangled and lifeless bodies 
were scattered next morning through all the streets of Paris. This 
and other outrages were committed on the absurd allegation that 
Protestants were not, and could not be, faithful subjects, or sound in 
their private morals. I'he statesmen of England, meanwhile, with a 
disregard of truth equally base, made the same accusation against 
Catholics, and on that hypocritical pretense compelled them, for more 
than a century, to groan under oppression compared to which the 
bondage of Egypt was mild and merciful. 

It engenders dissimulation of another kind. It pays an enormous 
premium for hypocrisy, and crushes out all independence and truth 
from the hearts of the people. Sincerity, even when it clings to an 
erroneous faith, is the first of virtues. But the brave, true men, who 
would rather suffer than belie their honest convictions, arc hunted 
down and sent to the stake, or at least are banished in disgrace from 
the public councils, while the knave or the coward, who is willing to 
profess whatever creed is safe or profitable, is rewarded for his base- 



66 MISCELLANEOUS. 

ness with iufluence, power, and place. Bigotry applies an infallible 
test to the merits of men. With unerring certainty she divides the 
chaff from the wheat, but the wheat she condemns to the unquench- 
able fire of her hatred, while the chaff is carefully stored away in her 
garner. Therefore it is that, when bigotry reigns, the public service 
is always crowded with the worst men. Hostility against an unpopu- 
lar religion is easily simulated. When you make that a virtue, the 
infidel and the ribald scorner can be as virtuous as anybody. When 
that becomes a passport to the sovereign's favor, the sta,te will be 
served, not by religious men, but by ''hireling wolves, whose gospel 
is their maw." 

It is useless to describe any further the features of this monstrous 
demon. It is the Moloch of the earth, who sits on his shrine up to 
the ears in blood, and compels the children of men " to pass through 
fire to his grim idol." It corrupts the morals, it pollutes the religion, 
it endangere the safety of any people who permit it to gain a foothold 
among them. 

But we may safely felicitate ourselves upon one thing. Our estab- 
lishment of perfect religious liberty and equality has not only given 
happiness and peace to ourselves, but it has revolutionized the senti- 
ments of the Christian world. We have led the grandest reform that 
has ever been seen since the days of the apostles. England, under 
the admitted influence of our example, has, in a great measure, 
knocked away the shackles from the minds of her people. She has 
removed one political disability after another, until at last she wel- 
comes men of every creed to her service. A Jew is sheriff of London, 
Catholics sit in her Parliament, and a Presbyterian was, not long ago, 
at the head of her Cabinet. France has made a progress still gi"eater. 
No one there thinks of excluding a man from office on account of his 
religion. For many years the prime minister, who mainly wielded 
the power and patronage of the kingdom, was the zealous defender of 
a creed which the king and four fifths of the people rejected. Even 
the fund raised by taxation for purposes of religious instruction is dis- 
tributed to preachers of the Protestant as well as the Catholic faith. 
In those parts of Germany where the religious wars were conducted 
with the greatest ferocity, the Catholic and the Protestant sit side by 
side at the same council board, and even worship alternately in the 
same churches. The inquisition has been abolished in Spain, and 
auto-da-fes are heard of no longer in Portugal. Each government in 
Europe still supports what it chooses to call the national faith, but 
offenses against the religion of the state are nowhere visited with 
those cruel and sanguinary punishments which used to disgrace the 
Christian name. The great light of religious freedom, which was seen 
at first only from the mountain-ranges of the intellectual world, has 
already illumined the hill-sides, and promises soon to expel the deep 



MISCELLANEOUS. 67 

darkness from the lowest valleys. May the time be speeded when the 
whole earth shall be bathed in its radiance ! 

That America should now give up the proud position she occupies 
in the front of the world's great march, and skulk back like a recreant 
into the rear, is a thought which can not enter an American mind 
without causing a blush of insupportable shame. She stands pledged 
to this principle in the face of the world — she has solemnly devoted 
herself to its championship — she has deliberately promised it, not only 
to her own people, but to all others who should fly to her for protec- 
tion — and, if she breaks her faith, it will be such perfidy as never 
blackened the brow of any nation before. 

To avert a calamity so grievous, and to prevent a disgrace so in- 
delible, the country looks to her educated men. The unbroken and 
uncorrupted heart of the people will be always with you on the right 
side ; but you are the body-guard of freedom, and it is your special 
duty to carry her oriflamme in the van of every battle. Perhaps no 
dangerous service will be needed soon. You may safely sit still while 
your enemies merely talk against the equal rights of all the people. 
But if at any time hereafter, during the long lives which I hope you 
will all enjoy, some great combination should arise to stir up the bitter 
waters of sectarian strife, and to marshal ignorance, prejudice, and 
selfishness into a body compact enough to endanger the bulwarks of 
the Constitution, then let your flag stream out upon the wind ! 

"... then stand you np, 
Shielded, and helmed, and vveaponed with the truth, 
And drive before you into uttermost shame 
Those recreant caitiffs." 



♦'POLITICAL PKEACHING."— EEPLY TO DR. NEVIN. 

York, Jidy 25, 1SG6. 
To the Rev. Alfred Nevin, D. D. : 

My dear Sir : Your letter addressed to me through the Phila- 
delphia '^ Evening Bulletin " disappoints me, because I did not expect 
it to come in that way, and because it does not cover the subject in 
issue between us ; but, if I am silent, your friends will say, with some 
show of reason, that you have vindicated ''political preaching" so 
triumphantly that all opposition is confounded, I must, therefore, 
speak freely in reply. In doing so, I mean to say nothing inconsistent 
with my great respect for your high character in the Church and in 
the world. The admirable style and temper of your own communica- 
tion deserve to be imitated. 



68 MISCELLANEOUS. 

I fully concede the right you claim for clergymen to select their 
own themes and handle them as they please. You say truly that 
neither lawyers nor johysicians, nor any other order of men, have the 
least authority to control you in these particulars. But you will not 
deny that this is a privilege which may be abused. You expressly 
admit that some clergymen Ziave abused it, ^'and,ly doing so, did 
more them any other class of men to comme7ice and continue the late 
rebellion." While, therefore, we can assert no power to dictate your 
conduct, much less to force you, we are surely not wrong when we 
entreat you to impose upon yourselves those restrictions which reason 
and revelation have shown to be necessary for the good of the Church 
and the safety of civil society. 

I acknowledge that your commission is a very broad one. You 
must ''declare the whole counsel of God," to ths end that sinners 
may be convinced and converts built up in their most holy faith. 
Truth, justice, temperance, humility, mercy, peace, brotherly kind- 
ness, charity — the whole circle of the Christian virtues — must be 
assiduously taught to your hearers ; and, if any of them be inclined 
to the opposite vices, you are to denounce them without fear, by pri- 
vate admonition, by open rebuke, or by a general delivery of the law 
which condemns them. You are not bound to pause in the perform- 
ance of this duty because it may oifend a powerful ruler or a strong 
political party. Nor should you shrink from it when bad men, for 
their own purposes, approve what you do. Elevate the moral charac- 
ter, enlighten the darkness, and purify the hearts of those who are 
under your spiritual charge at all hazards, for this is the work which 
your great Taskmaster has given you to do, and he will admit no ex- 
cuse for neglecting it. 

But this is precisely what the political preacher is not in the habit 
of doing. He directs the attention of his hearers away from their 
own sins to the sins — real or imputed — of other people. By teaching 
his congregation that they are better than other men, he fills their 
hearts with self-conceit, bigotry, spiritual pride, envy, hatred, malice, 
and all uncharitableness. Instead of the exhortation, which they 
need, to take the beam out of their own eye, he incites them to pluck 
the mote from their brother's. He does not tell them what they shall 
do to be saved, but he instructs them very carefully how they shall 
act for the destruction of others. He rouses and encourages to the 
utmost of his ability those brutal passions which result in riot, blood- 
shed, spoliation, civil war, and general corruption of morals. 

You commit a grievous error in supposing that politics and re- 
ligion are so mingled together that you can not preach one without 
introducing the other. Christ and his apostles kept them perfectly 
separate. They announced the great facts of the gospel to each in- 
dividual whom they addressed. When these were accepted, the belie vei 



MISCELLANEOUS. 69 

was told to repent aud be baptized for the remission of his sins, and 
afterward to regulate his own life by the rules of a pure and perfect 
morality. They expressed no preference for one form of government 
over another. They provoked no political revolutions, and they pro- 
posed no legal reforms. If they had done so, they would have flatly 
contradicted the declaration that Christ's kingdom was not of this 
world, and Christianity itself would have died out in half a century. 
But they accepted the relations w^hich were created by human law, 
and exhorted their disciples to discharge faithfully the duties which 
arose out of them. Though the laws which defined the authority of 
husbands, parents, masters, and magistrates were as bad as human 
perversity could make them, yet the early Christians contented them- 
selves with teaching moderation in the exercise of legal power, and 
uniformly inculcated the virtues of obedience and fidelity upon wives, 
children, slaves, and subjects. They joined in no clamors for or 
against any administration, but simply testified against sin before the 
only tribunal which Christ ever erected on earth — that is to say, the 
conscience of the sinner himself. The vice of political preaching was 
wholly unknown to the primitive Church. 

It is true that Paul counseled obedience to the government of 
Nero, and I am aware that modern clergymen interpret his words as 
a justification of the doctrine that support of an existing administra- 
tion is "part of their allegiance to God." Several synods and other 
ecclesiastical bodies have solemnly resolved something to that effect. 
But they forget that what Paul advised was simple submission, not 
active assistance, to Nero. The Christians of that day did not indorse 
his atrocities merely because he was "the administration duly placed 
in power." They did not go with him to the theatre, applaud his act- 
ing, or praise him in the churches when he kidnapped their brethren, 
set fire to a city, or desolated a province. Nor did they assist at his 
apotheosis after his death, or pronounce funeral sermons to show that 
he was greater than Scipio, more virtuous than Cato, and more elo- 
quent than Cicero. Political preachers would have done this, but 
Paul and Peter did no such thing. 

There is nothing in the Scriptures to justify the Church in apply- 
ing its discipline to any member for offenses purely political, much less 
for his mere opinions or feelings on public affairs. The clergy are 
without authority, as they are often without fitness, to decide for 
their congregation what is right or what is wrong in the legislation of 
the country. They are not called or sent to propagate any kind of 
political doctrine. The Church and the State are entirely separate 
and distinct in their origin, their object, and the sphere of their ac- 
tion ; insomuch that the organism of one can never be used for any 
purpose of the other without injury to both. 

Do I, therefore, say that the Christian religion is to have no influ- 



70 MISCELLANEOUS. 

ence on the political destiny of man ? Far from it. Notwithstand- 
ing the unfaithfulness of many professors, it has already changed the 
face of human society, and it will yet accomplish its mission by spread- 
ing peace, independence, truth, Justice, and liberty, regulated by law, 
"from the sea to the uttermost ends of the earth." But this will be 
accomplished only by reforming and elevating the individuals of whom 
society is composed — not by exasperating communities against each 
other, not by any alliance with the governments of the world, not by 
any vulgar partnership with politicians to kill and plunder their 
enemies. 

Every time you reform a bad man, and bring his character up to 
the standard of Christian morality, you make an addition, greater or 
less, to that righteousness which exalteth a nation, and subtract an 
equal sum from the sin which is a reproach to any people. Some- 
times a single conversion is extremely important in its immediate 
effect upon the public interests of a whole nation. No doubt the 
acceptance of the truth by Dionysius, the Areopagite, had much to 
do in molding the subsequent laws and customs of Athens. The con- 
version of Constantine was followed by the instant abrogation of all 
laws which fettered the conscience. In the reign of Theodosius the 
people of Thessalonica rose against the Eoman garrison and killed its 
commander. For this act of rebellion the emperor decreed against 
them the curse of an indiscriminate war, in which the guilty and the 
innocent were confounded together in one general slaughter. His 
spiritual "guide, philosopher, and friend " at the time was Ambrose, 
Archbishop of Milan, who boldly denounced his cruelty, refused to 
give him the sacrament, or even to administer it in his presence, com- 
pelled him to take his seat among the penitents on the portico of the 
church, and induced him to humble his diadem in the dust for eight 
months in succession. The conscience of the emperor was thoroughly 
awakened ; his subsequent reign was distinguished by justice and 
mercy, the integrity of the empire was preserved in peace, and the 
great " Theodosian Code," the product of that bitter repentance, is 
still read and quoted for its admirable union of humanity and policy. 
Ambrose produced these consequences by acting in the true cai^acity 
of a Christian minister, for he reformed the criminal by a direct 
appeal to his own heart. A political preacher, in the same circum- 
stances, would have inflamed the sanguinary passions of the monarch 
by exaggerating the treason of the Thessalonians, and counseling the 
military execution of all who presumed to sympathize in their suffer- 
ings. 

You will see, I think, the distinction I would make. A gospel 
preacher addresses the conscience of his hearers for the honest j)ur- 
pose of converting them from the error of their ways — a political 
preacher speaks to one community, one party, or one sect, and his 



MISCELLANEOUS. 71 

theme is the wickedness of another. The latter effects no religious 
purposes whatever, but the chances are, ninety-nine in a hundred, 
that he excites the bad passions of those who are present, while he 
slanders the absent and undefended. Both classes of preachers fre- 
quently speak upon the same or similar subjects, but they do so with 
different objects and aims. 

I will make my meaning more clear by taking your own illustra- 
tions. You believe in the first day of the week as a Sabbath, and, so 
believing, your duty undoubtedly is to exhort all persons under your 
charge to observe it strictly ; but you have no right to preach a cru- 
sade against the Jews and Seventh-day Baptists, to get intolerant laws 
enacted against them for keeping Saturday as a day of rest. If drunk- 
enness be a sin which easily besets your congregation, you may warn 
them against it, and, inasmuch as abstinence is always easier than 
moderation, you should advise them to taste not, touch not, and 
handle not ; but your position gives you no authority to provoke vio- 
lent hostilities against tavern-keepers, liquor-dealers, or distillers. If 
any of your hearers be ignorant or coarse enough to desire more wives 
than one apiece, you should certainly teach them that polygamy is 
the worst feature of Asiatic manners, inconsistent with Christianity, 
and dangerous to domestic happiness ; but you can not lawfully urge 
them to carry fire and sword into the territory of the Mormons merely 
because some of the Mormons are in this respect less holy than you. 
If the holding of slaves or bond-servants be a practical question 
among the members of your church, I know of nothing which forbids 
you to teach whatever you conscientiously believe to be true on that 
subject. But in a community where slavery is not only unknown but 
impossible, why should any preacher make it the subject of his weekly 
vituperation ? You do not improve the religion of the slaveholder 
by traducing his character, nor mend the spiritual condition of your 
own people by making them thirst for the blood of their fellow-men. 

If any person, to whom the service of another is due by the laws 
of the State in which he lives, shall need your instructions to regulate 
his personal conduct toward the slave, you are bound, in the first 
place, to tell him that, as long as that relation exists, he should be- 
have with the utmost humanity and kindness ; for this you have the 
clear warrant of the apostolic example and precept. In dealing with 
such a person you may go as much further as your own conscientious 
interpretation of the Bible will carry you. If you are sure that the 
divine law does, under all circumstances, make the mere existence of 
such a relation sinful on the part of the master, you should induce 
him to dissolve it by the immediate emancipation of his slaves ; for 
that is truth to you which you believe to be true. But where is the 
authority for preaching hatred of those who understand the Scripture 
differently ? What privilege can you show for exciting servile insur- 



Ta M/SCELLAjVEOC'S, 

vw\\on ? Who inno yon tho rii;li( to sjiy (hat John Hnnvn was hotter 
than any othor thiof or nmrdorov. moivly booauso his orinios woiv ooni- 
niittod ac^unsi pix^-shnory mon ? 

I think tho mitiistor. in his jnilpit ilitsoonrsos. is forbiiliUni to tvnioh 
at all npon that olass of snhjoots whioh aiv jnuvly politioal ; suolu (or 
instance, as tho bankini; hnv. tarilT. railroad ohartors, 8tato rights, the 
i\atnralii:ation laws, and nogro sutTnigi\ Those are qtiostions of nioiv 
jn^lilieal expodioney : ivliuion takes no eogni/.anoo of thoni ; they oonio 
\vithii\ the sole jurisdiotiou of the statesman ; and the Churoh has no 
moiv right to take sides npon them than the eivil liovernnient has to 
use its leiiislative. judieial, or exeeutive power for the purpose of on- 
foivitiiT prineiiWes wholly ivligious. 

In short, if I am not enliivly n\istaken. a Christian minister has 
no authority to pivaoh ujhm\ ai\y subjects except those in which ilivine 
ix^Yclatioi\ has given him an infallible rule of faith and practice ; and, 
even upvm them, ho ntust speak always for the c^litication of his own 
heann's, " rightly dividing tho w^nd of truth." so as to load them in 
the way of all righteousness. \Vhoi\ he does more than this ho goes 
beyond his eommission. he boeomes a scurvy politician, and his iutlu- 
once is altogvther pernicioUv^, 

The use of tho olorical otVico for the purpose of propagating politi- 
cal doctrines under any ciivumstances. or with any excuse, is. in my 
judgmoi\t, not only without authority, but it is the highest crime that 
can Iv comtuittod agaiiist the government of IuhI or num. IVrhaps I 
ought not to make this bix>ad assertion without giving some additional 
reasot\s for it. 

In the tirst place, it is givssly dishonest. 1 employ you as a minis- 
ter, pay your s;jlary aiui build you a church, because 1 have contidonce 
in your theological doctrines, but you may bo at the Siime time wholly 
unfit for my political leader. Xow. you aiv guilty of a base fraud 
upon mo if. instead of pnwehing religion, yon take advantage of tho 
position I have given you to ventilate your orudo and ignorant i\otioi\s 
on State atTairs, I have asked for broad, and you give mo a stone ; in- 
stead of tho tish I barg-ainod for. you put into my hands a sovpont that 
stingy and poisons me. 

It destnns tho unity of the Churoh. Thero is no room for rational 
dispute about tho groat truths of Christianity, but mon will never 
agiw upon politieal snbjoots. for human go vornmont is at best but a 
con\pron\ise of seltish intorosts and conflicting passions. "When you 
mix the two togi^thor you broak tho Churoh into fnigments. and, in- 
stead of "one Lonl, one faith, and one baptism." you croate a tliou- 
sjvnd warring soots, and substitute tho proverbial bitterness of the 
odium thtvhhiiciim for the "charity which thinkoth no evil." 

No one will deny that the union of Churoh and state is always tho 
cause of bad governniont. perverted religion, and corrupt morals. I 



MISCELLANEOUS. 73 

do not moan merely that legal union which exists in European coun- 
trieH. 'J'hat in ha^i enough ; hut you have Ic-is coTnmon-.Hcn-'/j tfwn I 
give you credit for, if yon do not «ee that thi.n adultx-rou/j connection 
mHuincH itH rnont poJhjting form when the Church i» voluntarily pros- 
titut^jd hy her own mininterH U) a political part.y in a popular govern- 
ment. 

T\i(i evil inflnenee of Hueh connections upon Church and rtate hi 
easily accounU;d for. 13oth of thern in (^nuh'iusxtUm will do wliat 
cither would recoil from if standing alone. A jKjlitician, backed by 
the promi.% of the clergy t^j Kuntain him, can Kafely defy honesty and 
trample upon the law, for, do what he may, he is assured of a clerical 
support here and of heaven hereafter. The clergy, on the other hand, 
and those who are under their influence, ea«ily acquire the habit of 
praising indiscriminati^jly what^.-ver i« done by their public men. Act- 
ing and reacting on one another, they go down t^jgether in the direc- 
tion of the pit that is bottomless, and both are found to have "a 
strange alacrity at sinking." 

No man can serve two masters faithfully, for he mu-.t Ijate one if 
he loves the other. A rninist^;r who admires and follows such men an 
those who have lately ruled and ruined this country must necessarily 
despise the character of Christ. If he glorifies the cruelty, rapacity, 
and falsehood of his party leaders, he is compclle<^l, by an inflexible 
law of human nature, to "deny the Jyjrd who bought hirn." 

The experience of fifteen centuries j^roves that political preachers 
arc the great curse of the world. More than half the bloody ware 
which, at different jieriods, have desolated Christendom, were pro- 
duced by their direct instigation ; and, wherever they have thrust 
themselves into a contest commenced by others, they always enron- 
omed the strife, and made it more cruel, savage, and uncompromis- 
ing. The religious wars, so called, had nothing religious about them 
except that they were hissed up by the clergy. Look back and see if 
this be not true. 

The Arian controversy (the first great schism) was followed by 
wars in which millions of lives were lost. T)o you suppose the real 
quarrel was for the insertion or omission otfilioque in that part of the 
creed which describes the procession of the Holy Ghost ? Did a homo- 
ouHian slaughter his brother because ha vfQ.'A 2ihomfdoufAan? Xo, it 
was not the difference of a diphthong, but the plunder of an empire 
that they fought for. It was the politics of the Church, not her reli- 
gion, that infuriated the parties, and converted men into demons. 

The Thirty Years' War in Germany is often supposed to have been 
a fair, stand-up fight between the two leading forms of Christianity. 
It was not so. The religious difference was the false pretense of the 
political preachers for the promotion of their own schemes. There was 
not a sane man on all the continent who would have felt himself im- 



74 * MISCELLANEOUS. 

pelled by motives merely religious to murder his neighbor for believ- 
ing or disbelieving in transubstantiation. If proof of this were want- 
ing, it might be found in the fact that, long before the war ended, the 
sectarian cries were abandoned, and Catholics, as well as Protestants, 
were fighting on both sides. 

It is utterly impossible to believe that the clergy of England and 
Scotland, if they had not been politicians, would have thought of 
waging bloody wars to settle questions of election and reprobation, 
fate, foreknowledge, free-will, and other points of metaphysical the- 
ology. Nor would they, apart from their politics, have encouraged 
and committed the other horrid crimes of which they were guilty in 
the name of religion. 

Can yoii think that the Irish were invaded, and conquered, and 
oppressed, and murdered, and robbed for centuries, merely because 
the English loved and believed in the Protestant religion ? I suppose 
you know that those brutal atrocities were carried on for the purpose 
of giving to political preachers in England possession of the churches, 
cathedrals, glebe-lands, and tithes which belonged to the Irish Catho- 
lics. The soldier was also rewarded by confiscations and plunder. 
The Church and the state hunted in couples, and Ireland was the 
prey which they ran down together. 

Coming to our own country, you find Massachusetts and Connecti- 
cut, in colonial times, under the sole domination of political preach- 
ers. Their treacherous wars upon the Indians for purposes wholly 
mercenary ; their enslaving of white persons, as well as red ones, and 
selling them abroad, or ''swapping them for blackamoors"; their 
whipping, imprisoning, and killing Quakers and Baptists for their 
conscientious opinions ; and their base treatment of such men as 
Roger Williams and his friends, will mark their government through 
all time as one of the crudest and meanest that ever existed. 

Political preachers have not behaved any better since the Revolu- 
tion than before. About the commencement of the present century 
they were busy in their vile vocation all over New England, and con- 
tinued it for many years. The willful and deliberate slanders habitu- 
ally uttered from the pulpit against Jefferson, Madison, and the friends 
who supported them, were a disgrace to human nature. The immedi- 
ate effect of this was the Yankee plot to secede from the Union, fol- 
lowed by corrupt combinations Avith a foreign enemy to betray the 
liberties of the country. Its remoter consequences are seen in the 
shameless rapacity and bitter malignity which, even at this moment, 
are howling for the property and blood of an unarmed and defenseless 
people. 

You and I both remember the political preaching which ushered 
in and supported the reign of the Know-No things, Blood-Tubs, and 
Plug-Uglies J when Maria Monk was a saint, and Joe Barker was 



MISCELLANEOUS. ' 75 

mayor of Pittsburg ; when pulpits resounded every Sunday with the 
most injurious falsehoods against Catholics ; when the public mind 
was debauched by the inculcation of hypocrisy and deception ; when 
ministers met their political allies in sworn secrecy to plot against the 
rights of their fellow-citizens. You can not forget what came of this 
— riot, murder, church-burning, lawless violence all over the land, 
and the subjugation of several great States to the political rule of a 
party destitute alike of principle and capacity. 

I could easily prove tliat those clerical politicians, who have tied 
their churches to the tail of the Abolition party, are criminal on a 
grander scale than any of their predecessors. But I forbear, partly 
because I have no time, and partly because it may, for aught I know, 
be a sore subject with you. I would not excite your wrath, but rather 
** provoke you to good works." 

Apart from the general subject there are two or three special ideas 
expressed in your letter from which I venture to dissent. 

You think that, though a minister may speak from the pulpit on 
politics, he ought not to indicate what party he belongs to. It strikes 
me that, if he has a party, and wants to give it ecclesiastical aid or 
comfort, he should boldly avow himself to be what he is, so that all 
men may know him. Sincerity is the first of virtues. It is bad to be 
a wolf, but a wolf in sheep's clothing is infinitely worse. 

You represent the Church as an unfinished structure, and the state 
as its scaffolding. I think the Church came perfect from the hand of 
its divine Architect — built upon a rock, established, finished, com- 
plete — and every one who comes into it by the right door will find a 
mansion prepared for him. It needs no scaffold. Its founder re- 
fused all connection with human governments for scaffolding or any 
other purpose. 

You say (in substance) that, without sometimes taking political 
subjects, a minister is in danger of falling into a ''vague, indefinite, 
and non-committal style," which will do no good, and bring him no 
respect. The gospel is not vague, indefinite, or non-committal upon 
the subjects of which it takes jurisdiction, and upon them you may 
preach as loudly as you please. But I admit that in times of great 
public excitement — an important election or a civil war — men listen 
impatiently to the teachings of faith and repentance. A sermon 
which tells them to do justice, love mercy, and walk humbly before 
God, is not an entertainment to which they willingly invite them- 
selves. At such a time a clergyman can vastly increase his personal 
consequence, and win golden opinions from his audience, by pamper- 
ing their passions with a highly seasoned discourse on politics. The 
temptation to gratify them often becomes too strong for the virtue of 
the preacher. I fear that you yourself are yielding to it. As a mere 
layinan I have no right to advise a doctor of divinity, but I hoi)e I am 
6 



76 MISCELLANEOUS. 

not over-presumptuous when I warn you against this specious allure- 
ment of Satan. All thoughts of putting the gospel aside because it 
does not suit the depraved tastes of the day, and making political 
harangues to win popularity in a bad world, should be sternly trampled 
down as the suggestions of that Evil One "who was a liar and a mur- 
derer from the beginning." 

Faithfully yours, etc., 

J. S. Black. 



ANSWER TO INGERSOLL. 



" Gratiano speaks an infinite deal of nothing, more than any man in all 
Venice ; his reasons are as two grains of wheat hid in two bushels of chaflf; you 
shall seek all day ere you find them; and, when you have them, they are not 
worth the search." — Merchant of Venice. 

The request to answer the foregoing paper comes to me, not in 
the form but with the effect of a challenge, which I can not decline 
without seeming to acknowledge that the religion of the civilized 
world is an absurd superstition, propagated by impostors, professed 
by hyjjocrites, and believed only by credulous dupes . 

But why should I, an unlearned and unauthorized layman, be 
placed in such a predicament? The explanation is easy enough. 
This is no business of the priests. Their prescribed duty is to preach 
the word, in the full assurance that it will commend itself to all good 
and honest hearts by its own manifest veracity and the singular purity 
of its precepts. They can not afford to turn away from their proper 
work, and leave willing hearers uninstructed, while they wrangle in 
vain with a predetermined opponent. They were warned to expect 
slander, indignity, and insult, and these are among the evils which 
they must not resist. 

It will be seen that I am assuming no clerical function. I am not 
out on the forlorn hope of converting Mr. Ingersoll. I am no preacher 
exhorting a sinner to leave the seat of the scornful and come up to the 
bench of the penitents. My duty is more analogous to that of the 
l)oliceman, who would silence a rude disturber of the congregation by 
telling him that his clamor is false, and his conduct an offense against 
public decency. 

Nor is the Cliurch in any danger which calls for the special vigi- 
lance of its servants. Mr. Ingersoll thinks that the rock-founded 
faith of Christendom is giving way before his assaults ; but he is 
grossly mistaken. The first sentence of his essay is a preposterous 
blunder. It is not true that " a profound change has taken place in 



MISCELLANEOUS. 77 

the world of thouglit,^^ unless a more rapid spread of the gospel, and 
a more faithful observance of its moral principles, can be called so. 
Its truths are everywhere proclaimed with the power of sincere con- 
viction, and accepted Avith devout reverence by uncounted multitudes 
of all classes. Solemn temples rise to its honor in the great cities ; 
from every hill-top in the country you see the church-spire pointing 
toward heaven, and on Sunday all the paths that lead to it are crowded 
with worshipers. In nearly all families, parents teach their children 
that Christ is God, and his system of morality absolutely perfect. 
This belief lies so deep in the popular heart that, if every written 
record of it were destroyed to-day, the memory of millions could re- 
produce it to-morrow. Its earnestness is proved by its works. Wher- 
ever it goes it manifests itself in deeds of practical benevolence. It 
builds, not churches alone, but almshouses, hospitals, and asylums. 
It shelters the poor, feeds the hungry, visits the sick, consoles the 
afflicted, provides for the fatherless, comforts the heart of the widow, 
instructs the ignorant, reforms the vicious, and saves to the uttermost 
them that are ready to perish. To the common observer it does not 
look as if Christianity were making itself ready to be swallowed up by 
infidelity. Thus far, at least, the promise has been kept that " the 
gates of hell shall not prevail against it." 

There is, to be sure, a change in the party hostile to religion — not 
*'sk profound change," but a change entirely superficial — which con- 
sists, not in thought, but merely in modes of expression and methods 
of attack. The bad classes of society always hated the doctrine and 
discipline which reproached their wickedness and frightened them by 
threats of punishment in another world. Aforetime they showed 
their contempt of divine authority only by their actions ; but now, 
under new leadership, their enmity against God breaks out into artic- 
ulate blasphemy. They assemble themselves together ; they hear with 
passionate admiration the bold harangue which ridicules and defies the 
Maker of the universe ; fiercely they rage against the Highest, and loud- 
ly they laugh, alike at the justice that condemns, and the mercy that 
oilers to pardon them. The orator who relieves them by assurances of 
impunity, and tells them that no supreme authority has made any law 
to control them, is applauded to the echo, and paid a high price for 
his congenial labor ; he pockets their money, and flatters himself that 
he is a great power, profoundly moving "the world of thought." 

There is another totally false notion expressed in the opening para- 
graph, namely, that " they who know most of nature believe the least 
about theology." The truth is exactly the other way. The more 
clearly one sees "the grand procession of causes and effects," the more 
awful his reverence becomes for the author of the "sublime and un- 
broken " law which links them together. Not self-conceit and rebel- 
lious pride^ but unspeakable humility, and a deep sense of the meas- 



Y8 • MISCELLANEOUS. 

ureless distance between the Creator and the creature, fills the mind 
of him who looks with a rational spirit upon the Avorks of the All-wise 
One. The heart of Newton repeats the solemn confession of David : 
*'When I consider thy heavens, the work of thy fingers, the moon 
and the stars which thou hast ordained ; what is man that thou art 
mindful of him, or tlie son of man that thou visitcst him ?'" At the 
same time, the lamentable fact must be admitted that ''a little learn- 
ing is a dangerous thing" to some persons. The sciolist, with a mere 
smattering of physical knowledge, is apt to mistake himself for a 
})hilosophcr, and, swelling with his own importance, he gives out, 
like Simon Magus, " that himself is some great one." His vanity 
becomes inflamed more and more, until he begins to think he knows 
all things. He takes every occasion to show liis accomplishments by 
finding fault with the works of creation and Providence ; and this is 
an exercise in which he can not long continue without learning to dis- 
believe in any being greater than himself. It Avas to such a person, 
and not to the unpretending simpleton, that Solomon applied his 
often-quoted a])horism, "The fool hath said in his heart, there is no 
Cod." Tliese are what Paul refers to as "vain babblings and the 
opposition of science, falsely so called " ; but they are perfectly pow- 
erless to stop or turn aside the great current of human thought on the 
subject of Christian theology. That majestic stream, supplied from 
a thousand unfailing fountains, rolls on and will roll forever. 

Labitur et lahetur in om7ie voluhilis aevutn, 

Mr. Ingersoll is not, as some have estimated him, the most formi- 
dable enemy that Christianity has encountered since the time of Julian 
the Apostate, But he stands at the head of living infidels, "by merit 
raised to that bad eminence." His mental organiziition has the pecul- 
iar defects which fit him for such a place. He is all imagination and 
no discretion. He rises sometimes into a region of wild poetry, where 
he can color everything to suit himself. His motto well expresses 
the character of his argumentation — "mountains are as unstable as 
clouds": a fancy is as good as a fact, and a high-sounding period is 
rather better than a logical demonstration. His inordinate self-confi- 
dence makes him at once ferocious and fearless. He Avas a practical 
politician before he "took the stump" against Christianity, and at all 
times he has proved his capacity to "split the ears of the ground- 
lings," and make the unskillful laugh. The article before us is the 
least objectionable of all his productions. Its style is higher, and 
better suited to the weight of the theme. Here the violence of his 
fierce invective is moderated ; his scurrility gives place to an attempt 
at sophistry less shocking if not more true ; and his coarse jokes are 
either excluded altogether, or else veiled in the decent obscurity of 
general terms. Such a paper from such a man, at a time like the 
present, is not wholly unworthy of a grave conti'adiction. 



MISCELLANEOUS. 79 

ilc makes certain charges which we answer by an explicit denial, 
and thus an issue is made, upon which, as a pleader would say, we 
** put ourselves upon the country." lie avers that a certain ''some- 
thing called Christianity" is a false faith imposed on the world with- 
out evidence ; that the facts it pretends to rest on arc mere inventions ; 
that its doctrines are pernicious ; that its requirements are unreason- 
able ; and that its sanctions are cruel. I deny all this, and assert, on 
the contrary, tliat its doctrines are divinely revealed ; its fundamental 
facts incontestably proved ; its morality perfectly free from all taint 
of error, and its influence most beneficent upon society in general, 
and upon all individuals who accept it and make it their rule of 
action. 

How shall this be determined ? Not by what we call divine reve- 
lation, for that would be begging the question ; not by sentiment, 
taste, or temper, for these are as likely to be false as true ; but by in- 
ductive reasoning from evidence, of which the value is to be measured 
according to those rules of logic which enlightened and just men 
everywhere have adopted to guide them in the search for truth. We 
can appeal only to that rational love of justice, and that detestation 
of falsehood, which fair-minded persons of good intelligence bring to 
the consideration of other important subjects when it becomes their 
duty to decide upon them. In short, I want a decision upon sound 
judicial principles. 

Gibson, the great Cliicf- Justice of Pennsylvania, once said to cer- 
tain skeptical friends of his : "Give Christianity a common-law trial ; 
submit the evidence 'pro and con to an impartial jury under the direc- 
tion of a competent court, and the verdict will assuredly be in its 
favor." This deliverance, coming from the most illustrious judge of 
his time, not at all given to expressions of sentimental piety, and 
quite incapable of speaking on any subject for mere effect, staggered 
the unbelief of those who heard it. I did not know him then, except 
by his great reputation for ability and integrity, but my thoughts 
were strongly influenced by his authority, and I learned to set a still 
higher value upon all his opinions when, in after-life, I was honored 
with his close and intimate friendship. 

Let Christianity have a trial on Mr. Ingersoll's indictment, and 
give us a decision secundum allegata et probata. I will confine my- 
self strictly to the record — that is to say, I will meet the accusations 
contained in this paper, and not those made elsewhere by him or 
others. 

His first specification against Christianity is the belief of its disci- 
ples " that there is a personal God, the creator of the material uni- 
verse." If God made the world it was a most stupendous miracle, 
and all miracles, according to Mr. Ingersoll's idea, arc '' the children 
of mendacity." To admit the one great miracle of creation would bo 



80 MISCELLANEOUS. 

an admission that other miracles are at least probable, and that would 
ruin his whole case. But you can not catch the leviathan of atheism 
with a hook. The universe, he savs, is natural — it came into beins: 
of its own accord; it made its own laws at the start, and afterward/)^ 
injproved itself considerably by spontaneous evolution. It would be 
a mere waste of time and space to enumerate the proofs which show 
that the universe was created by a pre-existent and self-conscious 
Being, of power and wisdom to us inconceivable. Conviction of the 
fact (miraculous though it be) forces itself on every one whose mental 
faculties are healthy and tolerably well-balanced. The notion that all 
things owe their origin and their harmonious arrangement to the for-^ 
tuitous concurrence of atoms is a kind of lunacy which very few men 
in these days are afflicted with. I hope I may safely assume it as cer- 
tain that all, or nearly all, who read this page will have sense and 
reason enough to see for themselves that the plan of the universe 
-could not have been designed without a Designer, or executed without 
a Maker. 

But Mr. Ingersoll asserts that, at all events, this material world 
had not a^ogd and beneficent creator ; it is a bad, savage, cruel piece 'j 
of work, with its pestilences, storms, earthquakes, and volcanoes ; and I 
man, with his liability to sickness, suffering, and death, is not a sue- j 
cess, but, on the contrary, a failure. To defend the Creator of the J 
world against an arraignment so foul as this would be almost as unbe- 
coming as to make the accusation. "We have neither Jurisdiction nor 
capacity to rejudge the justice of God. AVhy man is made to fill his 
particular place in the scale of creation — a little lower than the angels, 
yet far above the brutes ; not passionless and pure, like the former, 
nor mere machines, like the latter ; able to stand, yet free to fall ; 
knowing the right, and accountable for going wrong ; gifted with 
reason, and impelled by self-love to exercise the faculty — these are 
questions on which we may have our speculative opinions, but knowl- 
edge is out of our reach. Meantime we do not discredit our mental 
independence by taking it for granted that the Supreme Being has 
done all things well. Our ignorance of the whole scheme makes us 
poor critics upon the small part that comes within our limited percep- 
tions. Seeming defects in the structure of the world may be its most 
perfect ornament — all apparent harshness the tcnderest of mercies — 

" All discord, harmony not understood, 
All partial evil, universal good." 

But worse errors are imputed to God as moral ruler of the world 
than those charged against him as creator. lie made man badly, but 
governed him worse ; if the Jehovah of the Old Testament was not 
merely an imaginary being, then, according to Mr. Ingersoll, he was 



MISCELLANEOUS. 81 

a prejudiced, barbarous, criminal tyrant. AVo will sec what ground 
he lays, if any, for these outrageous assertions. 

Mainly, principally, first, and most important of all, is the unquali- 
fied assertion that the " moral code " which Jehovah gave to his people 
" is in many respects abhorrent to every good and tender man." Does 
Mr. Ingersoll know what he is talking about ? The moral code of the 
Bible consists of certain immutable rules to govern the conduct of all 
men, at all times and all places, in their private and personal relations 
with one another. It is entirely separate and apart from the civil 
polity, the religious forms, the sanitary provisions, the police regula- 
tions, and the system of international law laid down for the special 
and exclusive observance of the Jewish people. This is a distinction 
which every intelligent man knows how to make. Has Mr. Ingersoll 
fallen into the egregious blunder of confounding these things ? or, 
understanding the true sense of his words, is he rash and shameless 
enough to assert that the moral code of the Bible excites the abhor- 
rence of good men ? In fact and in truth, this moral code, which ho 
reviles, instead of being abhorred, is entitled to, and has received, the 
profoundest respect of all honest and sensible persons. The second 
table of the Decalogue is a perfect compendium of those duties which 
every man owes to himself, his family, and his neighbor. In a few 
simple words, which he can commit to memory almost in a minute, it 
teaches him to purify his heart from covetousncss ; to live decently, 
to injure nobody in reputation, person, or property, and to give every 
one his own. By the poets, the prophets, and the sages of Israel, 
these great elements arc expanded into a volume of minuter rules, so 
clear, so impressive, and yet so solemn and so lofty, that no pre-exist- 
ing system of philosophy can compare with it for a moment. If this 
vain mortal is not blind with passion, he w'ill see, upon reflection, 
that he has attacked the Old Testament precisely where it is the most 
impregnable. 

Dismissing his groundless charge against the moral code, we come 
to his strictures on the civil government of the Jews, which he says 
was so bad and unjust that the Lawgiver by whom it was established 
must have been as savagely cruel as tlie Creator that made storms and 
pestilences ; and the work of both was more worthy of a devil than a 
god. His language is recklessly bad, very defective in method, and 
altogether lacking in precision. But, apart from the ribaldry of it, 
which I do not feel myself bound to notice, I find four objections to 
the Jewish constitution — not more than four — which are definite 
enough to admit of an answer. These relate to the provisions of the 
Mosaic law on the subjects of — 1. Blasphemy and idolatry ; 2. War ; 
3. Slavery ; 4. Polygamy. In these respects he pronounces the Jew- 
ish system not only unwise but criminally unjust. 

liere let me call attention to the diflSculty of reasoning about 



82 MISCELLANEOUS. 

justice with a man who has no acknowledged standard of right and 
wrong. What is justice ? That wliich accords with law ; and the 
supreme law is the will of God. But I am dealing with an adver- 
sary who does not admit that there is a God. Then for him there is 
no standard at all ; one thing is as right as another ; and all things 
are equally wrong. Without a sovereign ruler there is no law, and 
where there is no law there can be no transgression. It is the misfor- 
tune of the atheistic theory that it makes the moral world an anarchy ; 
it refers all ethical questions to that confused tribunal where chaos sits 
as umpire and "■ by decision more embroils the fi*ay." But through 
the whole of this cloudy paper there runs a vein of presumptuous 
egoism which says as plainly as words can speak it that the author 
holds liimself to be the ultimate judge of all good and evil ; what he 
approves is right, and what he dislikes is certainly wrong. Of course 
I concede nothing to a claim like that. I will not admit that the 
Jewish constitution is a thing to be condemned merely because he 
curses it. I appeal from his profane malediction to the conscience of 
men who have a rule to judge by. Such persons will readily see that 
his specific objections to the statesmanship which established the civil 
government of the Hebrew people are extremely shallow, and do not 
furnish the shade of an excuse for the indecency of his general abuse : 

1. He regards the punishments inflicted for blasphemy and idola- 
try as being immoderately cruel. Considering them merely as reli- 
gious offenses — as sins against God alone — I agree that civil law 
should notice them not at all. But sometimes they affect very inju- 
riously certain social rights which it is the duty of the state to pro- 
tect. Wantonly to shock the religious feelings of your neighbor is a 
grievous wrong. To utter blasphemy or obscenity in the presence of 
a Christian woman is hardly better than to strike her in the face. 
Still, neither policy nor justice requires them to be ranked among the 
highest crimes in a government constituted like ours. Bvit things 
were wholly different under the Jewish theocracy, where God was the 
personal head of the state. There blasphemy was a breach of political 
allegiance ; idolatry was an overt act of treason ; to worehip the gods 
of the hostile heathen was deserting to the public enemy, and giving 
him aid and comfort. These are crimes which every independent 
community has always punished Avith the utmost rigor. In our own 
very recent history they were repressed at the cost of more lives than 
Judea ever contained at any one time. 

Mr. Ingersoll not only ignores these considerations, but he goes 
the length of calling God a religious persecutor and a tyrant because 
he does not encourage and reward the service and devotion paid by 
his enemies to the false gods of the pagan world. He professes to 
believe that all kinds of worship are equally meritorious, and should 
meet the same acceptance from the true God. It is almost incredible 



MISCELLANEO US. 83 

that such drivel as this should be uttered by anybody. But Mr. 
Ingersoll not only expresses tlie thought plainly — he urges it with the 
most extravagant figures of his florid rhetoric. He quotes the first 
commandment, in Avhicli Jehovah claims for himself the exclusive 
worship of his people, and cites, in contrast, the promise put in the 
mouth of Brahma, that be will appropriate the worship of all gods to 
himself, and reward all worshipers alike. These passages being com- 
pared, he declares the first "a dungeon, where crawl the tilings begot 
of jealous slime " ; the other, '' great as the domed firmament, inlaid 
with suns." Why is the living God, whom Christians believe to be 
the Lord of liberty and Father of lights, denounced as the keeper of a 
loathsome dungeon ? Because he refuses to encourage and reward the 
worship of Mammon and Moloch, of Belial and Baal ; of Bacchus, 
with its drunken orgies, and Venus, Avith its wanton obscenities ; the 
bestial religion which degraded the soul of Egypt, and tlie "dark 
idolatries of alienated Judah," polluted with the moral filth of all the 
nations round about. Let the reader decide whether this man, enter- 
taining such sentiments and opinions, is fit to be a teacher, or at all 
likely to lead us in the way we should go. 

2. Under the constitution which God provided for the Jews, they 
had, like every other nation, the war-making power. They could not 
have lived a day without it. The right to exist implied the right to 
repel, with all their strength, the opposing force which threatened 
their destruction. It is true, also, that in the exercise of this power 
they did not observe those rules of courtesy and humanity which have 
been adopted in modern times by civilized belligerents. AVhy ? Be- 
cause their enemies, being mere savages, did not understand, and 
would not practice, vav^ rule whatever ; and the Jews were bound ex 
necessitate rei — not merely Justified by the lex talionis — to do as their 
enemies did. In your treatment of hostile barbarians you not only 
may lawfully, but must necessarily, adopt their mode of warfare. If 
they come to conquer you, they may be conquered by you ; if they 
give no quarter, they are entitled to none ; if the death of your whole 
population be their purpose, you may defeat it by exterminating 
theirs. Tiiis sufficiently answers the silly talk of atheists and semi- 
atheists about the warlike wickedness of the Jews. 

But Mr. Ingersoll positively, and with the emphasis of supreme 
and all-sufficient authority, declares that "a war of conquest is sim- 
ply murder." He sustains this proposition by no argument founded 
in principle. He puts sentiment in place of law, and denounces 
aggressive fighting because it is offensive to his "tender and refined 
soul " : the atrocity of it is, therefore, proportioned to the sensibilities 
of his own heart. He proves war a desperately wicked thing by con- 
tinually vaunting his own love for small children. Babes — sweet 
babes — the prattle of babes — are the subjects of his most pathetic 



84 MISCELLANEOUS. 

eloquence, and his idea of music is embodied in the commonplace 
exjjression of a Hindoo, tliat the lute is sweet only to those who have 
not heard the prattle of their own children. All this is very amiable 
in him, and the more so, perhaps, as these objects of his affection are 
the young ones of a race, in his opinion, miscreated by an evil-work- 
ing chance. But his fliiloinogenitiveness proves nothing against Jew 
or Gentile, seeing that all have it in an equal degree, and those feel it 
most who make the least parade of it. Certainly it gives him no 
authority to malign the God who implanted it alike in the hearts of 
us all. But I admit that his benevolence becomes peculiar and ultra 
when it extends to beasts as well as babes, lie is struck with horror 
by the sacrificial solemnities of the Jewish religion. "The killing of 
those animals was," he says, "a terrible system," a "shedding of 
innocent blood," "shocking to a refined and sensitive souk" There 
is SLTch a depth of tenderness in this feeling, and such a splendor of 
refinement, that I give uj) without a struggle to the superiority of the 
man who merely professes it. A carnivorous American, full of beef 
and mutton, who mourns with indignant sorrow because bulls and 
goats were killed in Judea three thousand years ago, has reached the 
climax of sentimental goodness, and should be permitted to dictate on 
all questions of peace and war. Let Grotius, Vattel, and Puffendorf, 
as well as Moses and the prophets, hide their diminished heads. 

But, to show how inefficacious, for all practical purposes, a mere 
sentiment is when substituted for a principle, it is only necessary to 
recollect that Mr. Ingersoll is himself a warrior who staid not behind 
the mighty men of his tribe when they gathered themselves together for 
a war of conquest. He took the lead of a regiment as eager as himself 
to spoil the Philistines, "and out he went a-coloneling." How many 
Amalekites, and Hittites, and Amorites he put to the edge of the 
sword, how many wives he widowed, or how many mothers he " un- 
babed," can not now be told. I do not even know how many droves 
of innocent oxen he condemned to the slaughter. But it is certain 
that his refined and tender soul took great pleasure in all the terrors 
with which the war was attended, and in all the hard oppressions 
which the conquered people were made to suffer afterward. I do 
not say that the war was either better or worse for his participation 
and approval. But if his own conduct (for which he professes neither 
penitence nor shame) was right, it was right on grounds which make 
it an inexcusable outrage to call the children of Israel savage crimi- 
nals for carrying on wars of aggression to save the life-of their gov- 
ernment. These inconsistencies are the necessary consequence of hav- 
ing no rule of action, and no guide for the conscience. When a man 
throws away the golden metewand of the law which God has provided, 
and takes the elastic cord of feeling for his measure of righteousness, 
you can not tell from day to day what he will think or do. 



MISCELLANEOUS. 85 

3. But Jehovah permitted his chosen people to hold the captives 
they took in Avar or purchased from the heathen as servants for life. 
This was slavery, and Mr. lugersoll declares that "in all civilized 
countries it is not only admitted, but it is passionately asserted, that 
slavery is, and always was, a hideous crime " ; therefore he concludes 
that Jehovah was a criminal. This would be a non sequitur, even if 
the premises were true. But the premises are false ; civilized coun- 
tries have admitted no such thing. That slavery is a crime, under all 
circumstances and at all times, is a doctrine first started by the adher- 
ents of a political faction in this country less than forty years ago. 
They denounced God and Christ for not agreeing with them, in terms 
very similar to those used here by Mr. Ingcrsoll. But they did not 
constitute the civilized world ; nor were they, if the truth must be 
told, a very respectable portion of it. Politically, they were success- 
ful ; I need not say by what means, or with what effect upon the 
morals of the country. Doubtless Mr. Ingersoll gets a great advan- 
tage by invoking their passions and their interests to his aid, and he 
knows how to use it, I can only say that, whether American aboli- 
tionism was right or wrong under the circumstances in which we were 
placed, my faith and my reason both assure me that the infallible 
God proceeded upon good grounds when he authorized slavery in 
Judea. Subordination of inferiors to superiors is the groundwork of 
human society. All improvement of our race, in this world and the 
next, must come from obedience to some master better and wiser than 
ourselves. There can be no question that, when a Jew took a neigh- 
boring savage for his bond-servant, incorporated him into his family, 
tamed him, taught him to work, and gave him a knowledge of the true 
God, he conferred upon him a most beneficent boon. 

4. Polygamy is another of his objections to the Mosaic constitu- 
tion. Strange to say, it is not there. It is neither commanded nor 
prohibited ; it is only discouraged. If Mr. Ingersoll were a statesman 
instead of a mere politician, he would see good and sufficient reasons 
for the forbearance to legislate directly upon the subject. It would 
be improper for me to set them forth here. He knows, probably, that 
the influence of the Christian Church alone, and without the aid of 
state enactments, has extirpated this bad feature of Asiatic manners 
wherever its doctrines were carried. As the Christian faith prevails 
in any community, in that proportion precisely marriage is consecrated 
to its true purpose, and all intercourse between the sexes refined and 
purified. Mr. Ingersoll got his own devotion to the principle of mo- 
nogamy — his own respect for the highest type of female character — 
his own belief in the virtue of fidelity to one good wife — from the 
example and precept of his Christian parents. I speak confidently, 
because these are sentiments which do not grow in the heart of the 
natural man without being planted. Why, then, does he throw 



86 MISCELLANEOUS, 

polygamy into the face of the religion which abhors it ? Because he 
is nothing if not political. The Mormons believe in polygamy, and 
the Mormons are unpopular. They are guilty of having not only 
many wives but much property, and, if a war could be hissed up 
against them, its fruits might be more ^'gaynefull pilladge than wee 
doe now conceyve of." It is a cunning manoeuvre, this, of strengthen- 
ing atheism by enlisting anti-Mormon rapacity against the God of the 
Christians. I can only protest against the use he would make of 
these and other political interests. It is not argument ; it is mere 
stump oratory. 

I think I have repelled all of Mr. Ingersoll's accusations against 
the Old Testament that are worth noticing, and I might stop here. 
But I will not close upon him without letting him see, at least, some 
part of the case on the other side. 

I do not enumerate in detail the positive proofs which support the 
authenticity of the Hebrew Bible, though they are at hand in great 
abundance, because the evidence in support of the new dispensation 
will establish the verity of the old — the two being so connected to- 
gether that if one is true the other can not be false. 

When Jesus of Nazareth announced himself to be Christ, the Son 
of God, in Judea, many thousand persons who heard his words and 
saw his works believed in his divinity without hesitation. Since the 
morning of the creation nothing has occurred so wonderful as the 
rapidity with which this religion spread itself abroad. Men who were 
in the noon of life when Jesus was put to death as a malefactor lived 
to see him worshiped as God by organized bodies of believers in every 
province of the Koman Empire. In a few more years it took com- 
plete possession of the general mind, supplanted all other religions, 
and wrought a radical change in human society. It did this in the 
face of obstacles which, according to every human calculation, were 
insurmountable. It was antagonized by all the evil propensities, the 
sensual wickedness, and the vulgar crimes of the multitude, as well as 
the polished vices of the luxurious classes ; and was most violently 
opposed even by those sentiments and habits of thought which were 
esteemed virtuous, such as patriotism and military heroism. It en- 
countered not only the ignorance and superstition, but the learning 
and philosophy, the poetry, eloquence, and art of the time. Barba- 
rism and civilization were alike its deadly enemies. The priesthood of 
every established religion, and the authority of every government, 
were arrayed against it. All these, combined together and roused to 
ferocious hostility, were overcome, not by the enticing words of man's 
wisdom, but by the simple presentation of a pure and peaceful doc- 
trine, preached by obscure strangers at the daily peril of their lives. 
Is it Mr. Ingersoll's idea that this happened by chance, like the crea- 
tion of the world ? If not, there are but two other ways to account 



MISCELLANEOUS, 87 

for it : either the evidence by which the apostles were able to prove 
the supernatural origin of the gospel was overwhelming and irresist- 
ible, or else its propagation was provided for and carried on by the 
direct aid of the Divine Being himself. Between these two, infidelity 
may make its own choice. 

Just here another dilemma presents its horns to our adversary. If 
Christianity was a human fabrication, its authors must have been 
either good men or bad. It is a moral impossibility — a mere contra- 
diction in terms — to say that good, honest, and true men practiced a 
gross and willful deception upon the world. It is equally incredible 
that any combination of knaves, however base, would fraudulently 
concoct a religious system to denounce themselves, and to invoke the 
curse of God upon their own conduct. Men that love lies, love not 
such lies as that. Is there any way out of this difficulty, except by 
confessing that Christianity is what it purports to be — a divine revela- 
tion ? 

The acceptance of Christianity by a large portion of the generation 
contemporary with its Founder and his apostles was, under the cir- 
cumstances, an adjudication as solemn and authoritative as mortal 
intelligence could pronounce. The record of that judgment has come 
down to us, accompanied by the depositions of the principal witnesses. 
In the course of eighteen centuries many efforts have been made to 
open the judgment or set it aside on the ground that the evidence was 
insufficient to support it. But on every rehearing the wisdom and 
virtue of mankind have reaffirmed it. And now comes Mr. Ingersoll, 
to try the experiment of another bold, bitter, and fierce reargument. 
I will present some of the considerations which would compel me, if I 
were a judge or juror in the cause, to decide it just as it was decided 
originally : 

1. There is no good reason to doubt that the statements of the 
evangelists, as we have them now, are genuine. The multiplication 
of copies was a sufficient guarantee against any material alteration of 
the text. Mr. Ingersoll speaks of interpolations made by the fathers 
of the Church. All he knows and all he has ever heard on that sub- 
ject is that some of the innumerable transcripts contained errors which 
were discovered and corrected. That simply proves the present integ- 
rity of the documents. 

2. I call these statements depositions, because they are entitled to 
that kind of credence which we give to declarations made under oath 
— but in a much higher degree, for they are more than sworn to. 
They were made in the immediate prospect of death. Perhaps this 
would not affect the conscience of an atheist — neither would an oath 
— but these people manifestly believed in a judgment after death, 
before a God of truth, whose displeasure they feared above all things. 

3. The witnesses could not have been mistaken. The nature of 



88 MISCELLANEOUS. 

the facts precluded the possibility of any delusion about them. For 
every averment they had *'the sensible and true avouch of their own 
eyes " and ears. Besides, they were plain-thinking, sober, unimjigina- 
tive men, who, unlike Mr. Ingersoll, always, under all circumstances, 
and especially in the presence of eternity, recognized the difference 
between mountains and clouds. It is inconceivable how any fact 
could be proved by evidence more conclusive than the statement of 
such persons, publicly given and steadfastly persisted in through every 
kind of persecution, imprisonment, and torture, to the last agonies of 
a lingering death. 

4. Apart from these terrible tests, the more ordinary claims to 
credibility are not wanting. They were men of unimpeachable char- 
acter. The most virulent enemies of the cause they spoke and died 
for have never suggested a reason for doubting their personal honesty. 
But there is affirmative proof that they and their fellow-disciples were 
held by those who knew them in the highest estimation for truthful- 
ness. Wherever they made their report it was not only believed, but 
believed with a faith so implicit that thousands were ready at once to 
seal it with their blood. 

5. The tone and temper of their narrative impress us with a senti- 
ment of profound respect. It is an artless, unimpassioned, simjole 
story. No argument, no rhetoric, no epithets, no praises of friends, 
no denunciation of enemies, no attempts at concealment. How 
strongly these qualities commend the testimony of a witness to the 
confidence of judge and jury is well known to all who have any expe- 
rience in such matters. 

6. The statements made by the evangelists are alike upon every 
important point, but are different in form and expression, some of 
them including details which the others omit. These variations make 
it perfectly certain that there could have been no previous concert 
between the witnesses, and that each spoke independently of the 
others, according to his own conscience and from his own knowledge. 
In considering the testimony of several witnesses to the same transac- 
tion, their substantial agreement upon the main facts, with circum- 
stantial differences in the detail, is always regarded as the great char- 
acteristic of truth and honesty. There is no rule of evidence more 
universally adopted than this — none better sustained by general expe- 
rience, or more immovably fixed in the good sense of mankind. Mr. 
Ingersoll himself admits the rule and concedes its soundness. The 
logical consequence of that admission is, that we are bound to take 
this evidence as incontestably true. But mark the infatuated per- 
versity with which he seeks to evade it. He says that when we claim 
that the witnesses were inspired, the rule does not aj)ply, because the 
witnesses then speak what is known to him who inspired them, and 
all must speak exactly the same, even to the minutest detail. Mr. 



MISCELLANEOUS. 89 

Ingcrsoll's notion of an insj^ired witness is that he is no witness at all, 
but an irresponsible medium who unconsciously and involuntarily 
raps out or writes down whatever he is prompted to say. But this is 
a false assumption, not countenanced or even suggested by anything 
contained in the Scriptures. The apostles and evangelists are ex- 
pressly declared to be witnesses, in the proper sense of the word, 
called and sent to testify the truth according to their knowledge. If 
they had all told the same story in the same way, without variation, 
and accounted for its uniformity by declaring that they were inspired, 
and had spoken without knowing whether their words Avere true or 
false, where would have been their claim to credibility ? But they 
testified what they knew ; and here comes an infidel critic impugning 
their testimony because tlie impress of truth is stamped upon its face. 

7. It docs not appear that the statements of the evangelists were 
ever denied by any person who pretended to know the facts. Many 
there were in that age and afterward who resisted the belief that Jesus 
was the Christ, the Son of God, and only Saviour of man ; but his 
wonderful works, the miraculous purity of his life, the unapproach- 
able loftiness of his doctrines, his trial and condemnation by a judge 
who pronounced him innocent, his patient suffering, his death on the 
cross, and resurrection from the grave — of these not the faintest con- 
tradiction was attempted, if we except the false and feeble story which 
the elders and chief priests bribed the guard at the tomb to put in 
circulation. 

8. What wo call the fundamental truths of Christianity consist of 
great public events which are sufficiently established by history with- 
out special proof. The value of mere historical evidence increases 
according to the importance of the facts in question, their general 
notoriety, and the magnitude of their visible consequences. Corn- 
wallis surrendered to Washington at Yorktown, and changed the des- 
tiny of Europe and America. Nobody would think of calling a wit- 
ness or even citing an official report to prove it. Julius Ca3sar was 
assassinated. We do not need to prove that fact like an ordinary 
murder. He was master of the world, and his death was followed by 
a war with the conspirators, the battle at Philippi, the quarrel of the 
victorious triumvirs, Actium, and the permanent establishment of 
imperial government under Augustus. The life and character, the 
death and resurrection, of Jesus are just as visibly connected with 
events which even an infidel must admit to be of equal importance. 
The Church rose and armed herself in righteousness for conflict with 
the powers of darkness ; innumerable multitudes of the best and wisest 
rallied to her standard and died in her cause ; her enemies employed 
the coarse and vulgar machinery of human government against her, 
and her professors were brutally murdered in large numbers ; her tri- 
umph was complete ; the gods of Greece and Rome crumbled on their 



90 MISCELLANEOUS. 

altars ; the world was reyolutionized and human society was trans- 
formed. The course of these events, and a thousand others, which 
reach down to the present hour, received its first propulsion from the 
transcendent fact of Christ's crucifixion. Moreover, we find the me- 
morial monuments of the original truth planted all along the way. 
The sacraments of baptism and the supper constantly point us back 
to the author and finisher of our faith. The mere historical evidence 
is for these reasons much stronger than what we have for other occur- 
rences which are regarded as undeniable. When to this is added the 
cumulative evidence given directly and positively by eye-witnesses of 
irreproachable character, and wholly uncontradicted, the proof be- 
comes so strong that the disbelief we hear of seems like a kind of 
insanity : 

" It is the very eri'or of the moon, 
Which comes more near the earth than she was wont, 
And makes men mad ! " 

( From the facts established by this evidence, it follows irresistibly 

\ that the gospel has come to us from God. That silences all reasoning 

/ about the wisdom and justice of its doctrines, since it is impossible 

I even to imagine that wrong can be done or commanded by that Sov- 

\ ereign Being whose will alone is the ultimate standard of all justice. 

But Mr. Ingcrsoll is still dissatisfied. He raises objections as 

false, fleeting, and baseless as clouds, and insists that they are as 

stable as the mountains, whose everlasting foundations are laid by the 

hand of the Almighty. I will compress his propositions into plain 

words printed in italics, and, taking a look at his misty creations, let 

them roll away and vanish into air, one after another. 

Cliristianity offers eternal salvation as the reiuard of helief alone. 
This is a misrepresentation simple and naked. No such doctrine is 
propounded in the Scriptures, or in the creed of any Christian church. 
On the contrary, it is distinctly taught that faith avails nothing with- 
out repentance, reformation, and newness of life. 

The mere failure to helieve it is punished in hell. I have never 
known any Christian man or woman to assert this. It is universally 
agreed that children too young to understand it do not need to believe 
it. And this exemption extends to adults who have never seen the 
evidence, or, from weakness of intellect, are incapable of weighing it. 
Lunatics and idiots are not in the least danger, and, for aught I know, 
this category may, by a stretch of God's mercy, include minds consti- 
tutionally sound, but with faculties so joerverted by education, habit, 
or passion that they are incapable of reasoning. I sincerely hope that, ) 
upon this or some other principle, Mr. Ingersoll may escape the hell 
he talks about so much. But there is no direct promise to save him 
in spite of himself. The plan of redemption contains no exj^ress cove 



MISCELLANEOUS. 91 

nant to pardon one who rejects it with scorn and hatred. Our hope 
for him rests upon the infinite compassion of that gracious Being 
who prayed on the cross for the insulting enemies who nailed him 
there. 

The mystery of the second hirth is incomprehensible. Christ estab- 
lished a new kingdom in the world, but not of it. Subjects were 
admitted to the privileges and protection of its government by a pro- 
cess equivalent to naturalization. To be born again, or regenerated, 
is to be naturalized. The words all mean the same thing. Does Mr. 
Ingersoll want to disgrace his own intellect by pretending that he can 
not see this simple analogy ? 

The doctrine of the atonement is absurd, unjust, and immoral. The 
plan of salvation, or any plan for tlie rescue of sinners from the legal 
operation of divine justice, could have been framed only in the coun- 
cils of the Omniscient. Necessarily its heights and depths are not 
easily fathomed by finite intelligence. But the greatest, ablest, wisest, 
and most virtuous men that ever lived have given it their profoundest 
consideration, and found it to be not only authorized by revelation, 
but theoretically coufornied to their best and highest conceptions of 
infinite goodness. Nevertheless, here is a rash and superficial man, 
without training or habits of reflection, who, upon a mere glance, 
declares that it ''must be abandoned," because it seems to him "ab- 
surd, unjust, and immoral." I would not abridge his freedom of 
thought or speech, and the argumentum ad verecundiam would be 
lost upon him. Otherwise I might suggest that, when he finds all 
authority, human and divine, against him, he had better speak in a 
tone less arrogant. 

He does not comprehend hoio justice and mercy can he hlended to- 
gether in the plan of redemption, and therefore it can not he true. A 
thing is not necessarily false because he does not understand it : he 
can not annihilate a i^rinciple or a fact by ignoring it. There are 
many truths in heaven and earth which no man can see through ; for 
instance, the union of man's soul with his body is not only an unknow- 
able but an unimaginable mystery. Is it therefore false that a con- 
nection does exist between matter and spirit ? 

Hoiv, he asks, can the sufferings of an innocent person satisfy jus- 
tice for the sins of the guilty f This raises a metaphysical question, 
which it is not necessary or possible for me to discuss here. As mat- 
ter of fact, Christ died that sinners might be reconciled to God, and 
in that sense he died for them — that is, to furnish them with the 
means of averting divine justice which their crimes had provoked. 

What, he again asks, would we thinh of a man who allowed an- 
other to die for a crime luhich he himself had committed'^ I answer 
that a man who, by any contrivance, causes his own offense to be 
visited upon the head of an innocent person is unspeakably depraved. 



92 MISCELLANEOUS. 

But are Christians guilty of this baseness because they accept the 
blessings of an institution which their great benefactor died to estab- 
lish ? Loyalty to the King who has erected a most beneficent goA'ern- 
ment for us at the cost of his life — fidelity to the Master who bought 
us with his blood — is not the fraudulent substitution of an innocent 
person in place of a criminal. 

The doctrine of 7ion-resistcmce, forgiveness of injuries, reco7icilia- 
tion loitli enemies, as taught in the Neiu Testament, is the child of 
weakness, degrading, and unjust. This is the whole substance of a 
long, rambling diatribe, as incoherent as a sick man's dream. Chris- 
tianity does not forbid the necessary defense of civil society, or the 
proper vindication of personal rights. But to cherish animosity, to 
thirst for mere revenge, to hoard up wrongs, real or fancied, and lie 
in wait for the chance of paying them back ; to be impatient, unfor- 
giving, malicious, and cruel to all who have crossed us — these dia- 
bolical propensities are checked and curbed by the authority and spirit 
of the Christian religion, and the application of it has converted men 
from low savages into refined and civilized beings. 

The punishment of sinners in eternal hell is excessive. The future of 
the soul is a subject on which we have very dark views. In our present 
state the mind takes in no idea except what is conveyed to it through 
the bodily senses. All our conceptions of the spiritual world are 
derived from some analogy to material things, and this analogy must 
necessarily be very remote, because the nature of the subjects com- 
pared is so diverse that a close similarity can not be even supposed. 
No revelation has lifted the veil between time and eternity ; but in 
shadowy figures we are warned that a very marked distinction will be 
made between the good and the bad in the next world. Speculative 
opinions concerning the punishment of the wicked, its nature and 
duration, vary with the temj^er and the imaginations of men. Doubt- 
less we are many of us in error : but how can Mr. Ingersoll enlighten 
us ? Acknowledging no standard of right and wrong in this world, 
he can have no theory of rewards and punishments in the next. The 
deeds done in the body, whether good or evil, are all morally alike in 
his eyes, and, if there be in heaven a congregation of the just, he sees 
no reason why the worst rogue should not be a member of it. It is 
supposed, however, that man has a soul as well as a body, and that 
both are subject to certain laws, which can not be violated without 
incurring the proper penalty — or consequence, if he likes that word 
better. 

If Christ ivas God, he Tcnew that his folloioers would persecute and 
murder men for their opinions ; yet he did fiot forbid it. There is 
but one way to deal with this accusation, and that is to contradict it 
flatly. Nothing can be conceived more striking than the prohibition, 
not only of persecution, but of all the passions which lead or incite to 



MISCELLANEOUS. 93 

it. No follower of Christ indulges in malice even to his enemy with- 
out violating the plainest rule of his faith. He can not love God and 
hate his brother : if he says he can, St. John pronounces him a liar. 
The broadest benevolence, universal philanthropy, inexhaustible char- 
ity, are inculcated in every line of the New Testament. It is plain 
that Mr. Ingersoll never read a chapter of it ; otherwise he would not 
have ventured upon this palpable falsification of its doctrines. AVho 
told him that the devilish spirit of persecution was authorized, or en- 
couraged, or not forbidden, by the gospel ? The person, whoever it 
was, who imposed upon his trusting ignorance should be given up to 
the just reprobation of his fellow-citizens. 

Christians in modern times carry on wars of detraction and slan- 
der against one another. The discussions of theological subjects by 
men who believe in the fundamental doctrines of Christ are singularly 
free from harshness and abuse. Of course I can not speak with abso- 
lute certainty, but I believe most confidently that there is not in all 
the religious polemics of this century as much slanderous invective as 
can be found in any ten lines of Mr. Ingersoll's writings. Of course 
I do not include political preachers among my models of charity and 
forbearance. They are a mendacious set, but Christianity is no more 
responsible for their misconduct than it is for the treachery of Judas 
Iscariot or the wrongs done to Paul by Alexander the coppersmith. 

But, says he. Christians have heen guilty of ivanton and wiched 
'persecution. It is true that some persons, professing Christianity, 
have violated the fundamental principles of their faith by inflicting 
violent injuries and bloody wrongs upon their fellow-men. But the 
perpetrators of these outrages were in fact not Christians ; they were 
either hypocrites from the beginning or else base apostates — infidels or 
something worse — hireling wolves, whose gospel was their maw. Not 
one of them ever pretended to find a warrant for his conduct in any 
precept of Christ or any doctrine of his Church. All the wrongs of 
this nature which history records have been the work of politicians, 
aided often by priests and ministers who were willing to deny their 
Lord and desert to the enemy, for the sake of their temporal interests. 
Take the cases most commonly cited and see if this be not a true 
account of them. The auto- da fe of Spain and Portugal, the burn- 
ings at Smithfield, and the whipping of women in Massachusetts, 
were the outcome of a cruel, false, and anti-Christian policy. Coligny 
and his adherents were killed by an order of Charles IX, at the in- 
stance of the Guises, who headed a hostile faction, and merely for 
reasons of state. Louis XIV revoked the Edict of Nantes, and ban- 
ished the Waldenses under pain of confiscation and death ; but this 
was done on the declared ground that the victims were not safe sub- 
jects. The brutal atrocities of Cromwell and the outrages of the 
Orange lodges against the Irish Catholics were not j)ersecutions by 



94 MISCELLANEOUS. 

religions people, but movements as purely political as those of the 
Know-Nothings, Plug-Uglies, and Blood-Tubs of this country. If 
the gospel should be blamed for these acts in opposition to its princi- 
ples, why not also charge it with the cruelties of Nero, or the present 
persecution of the Jesuits by the infidel republic of France ? 

Christianity is opposed to freedom of thought. The kingdom of 
Christ is based upon certain principles, to which it requires the assent 
of every one who would enter therein. If you are unwilling to own 
His authority and conform your moral conduct to His laws, you can 
not expect that He will admit you to the privileges of His government. 
But naturalization is not forced upon you if you prefer to be an alien. 
The gospel makes the strongest and tenderest appeal to the heart, 
reason, and conscience of man — entreats him to take thought for his 
own highest interest, and by all its moral influence provokes him to 
good works ; but he is not constrained by any kind of duress to leave 
the service or relinquish the wages of sin. Is there anything that 
savors of tyranny in this ? A man of ordinary judgment will say, 
no. But Mr. Ingersoll thinks it as oppressive as the refusal of Jeho- 
vah to reward the worship of demons. 

The gospel of Christ does not satisfy the hunger of the heart. That 
depends upon what kind of a heart it is. If it hungers after right- 
eousness, it will surely be filled. It is probable, also, that if it hun- 
gers for the filthy food of a godless philosophy it will get what its 
appetite demands. That was an expressive phrase which Carlylc used 
when he called modern infidelity *' the gospel of dirt." Those who- 
are greedy to swallow it will doubtless be supplied satisfactorily. 

Accounts of miracles are ahvays false. Are miracles impossible ? 
No one will say so who opens his eyes to the miracles of creation with 
which we are surrounded on every hand. You can not even show 
that they are a priori improbable. God would be likely to reveal his 
will to the rational creatures who were required to obey it ; he would 
authenticate in some way the right of prophets and apostles to speak 
in his name ; supernatural power was the broad seal which he affixed 
to their commission. From this it follows that the improbability of a 
miracle is no greater than the original improbability of a revelation, 
and that is not improbable at all. Therefore, if the miracles of the 
New Testament, are proved by sufficient evidence, we believe them as 
we believe any other established fact. They become deniable only 
when it is shown that the great miracle of making the world was 
never performed. Accordingly, Mr. Ingersoll abolishes creation first, 
and thus clears the way to his dogmatic conclusion that all miracles 
are 'Hhe children of mendacity." 

Christianity is pernicious in its moral effect, darJcens the mind, 
7iarrows the soul, arrests the progress of human society, and hinders 
civilization. Mr. Ingersoll, as a zealous apostle of "the gospel of 



MISCELLANEOUS. 95 

dirt," must be expected to throw a good deal of mud. But this is 
too much : it injures himself instead of defiling the object of his 
assault. When I answer that all we have of virtue, justice, intellect- 
ual liberty, moral elevation, refinement, benevolence, and true wisdom 
came to us from that source which he reviles as the fountain of evil, 
I am not merely putting one assertion against the other ; for I have 
the advantage, which he has not, of speaking what every tolerably 
well-informed man knows to be true. Reflect what kind of a world 
this was when the disciples of Christ undertook to reform it, and com- 
pare it with the condition in which their teachings have put it. In 
its mighty metropolis, the center of its intellectual and political power, 
the best men were addicted to vices so debasing that I could not even 
allude to them without soiling the paper I write upon. All manner 
of un^jrincipled wickedness was practiced in the private life of the 
whole population without concealment or shame, and the magistrates 
were thoroughly and universally corrupt. Benevolence in any shape 
was altogether unknown. The helpless and the weak got neither 
justice nor mercy. There was no relief for the poor, no succor for 
the sick, no refuge for the unfortunate. In all pagandom there was 
not a hospital, asylum, almshouse, or organized charity of any sort. 
The indifference to human life was literally frightful. The order of 
a successful leader to assassinate his opponents was always obeyed by 
his followers with the utmost alacrity and pleasure. It was a special 
amusement of the populace to witness the shows at which men were 
compelled to kill one another, to be torn in pieces by wild beasts, or 
otherwise "butchered, to make a Roman holiday." In every province 
paganism enacted the same cold-blooded cruelties ; oppression and 
robbery ruled supreme ; murder went rampaging and red over all the 
earth. The Church came, and her light penetrated this moral dark- 
ness like a new sun. She covered the globe with institutions of 
mercy, and thousands upon thousands of her disciples devoted them- 
selves exclusively to works of charity at the sacrifice of every earthly 
interest. Iler earliest adherents were killed without remorse — be- 
headed, crucified, sawed asunder, thrown to the beasts, or, covered 
with pitch, piled up in great heaps and slowly burned to death. But 
her faith was made perfect through suffering, and the law of love rose 
in triumph from the ashes of her martyrs. This religion has come 
down to us through the ages, attended all the way by righteous- 
ness, justice, temperance, mercy, transparent truthfulness, exulting 
hope, and white-winged charity. Never was its influence for good 
more plainly perceptible than now. It has not converted, purified, 
and reformed all men, for its first principle is the freedom of the 
human will, and there are those who choose to reject it. But to the 
mass of mankind, directly and indirectly, it has brought uncounted 
benefits and blessings. Abolish it — take away the restraints which it 



96 MISCELLANEOUS. 

imposes on evil passions — silence the admonitions of its preachers — 
let all Christians cease tiieir labors of charity — blot ont from history 
the records of its heroic benevolence — repeal the laws it has enacted 
and the institutions it has built w.\s — let its moral principles be aban- 
doned and all its miracles of light be extinguished — Avhat would we 
come to ? I need not answer this question : the experiment has been 
partially tried. The French nation formally renounced Christianity, 
denied the existence of the Supreme Being, and so satisfied the hun- 
ger of the intidel heart for a time. "What followed ? Universal de- 
pravity, garments rolled in blood, fantastic crimes unimagined before, 
which startled the earth with their sublime atrocity. The American 
peo]^le have, and ought to have, no special desire to follow that terrible 
example of guilt and misery. 

It is impossible to discuss this subject within the limits of a iTview. 
No doubt the effort to be short has made mo obscure. If Mr. Inger- 
soll thinks himself wronged, or his doctrines misconstrued, let him 
not lay my fault at the door of the Church, or cast his censure on the 
clergy. 

*' Adsitm qui feci, in me convert ite f err urn."' 

J. S. Black. 



LEGISLATIVE OATH.— CONSTITUTIOXAL CONVENTION, 
MARCH 10, 1873. 

The convention having resolved itself into the Committee of the 
"Whole on the report of the Committee on Legislation, ]Mr. Black rose 
and spoke as follows : 

Mr. Chaikmax : This is a subject upon which I speak with great 
reluctance. But I am deeply anxious about it. I do most devoutly 
believe that the destiny of this Commonwealth, and perhaps that of the 
whole country, depends upon the decision to which this convention 
may come. 1 beg a brief hearing. 

It will be admitted that the legislative function is by far the most 
important one in any free government. It is the supreme power of 
the State. All others are insignificant in comparison to it, inasmuch 
as all the others are bound to obey its will. The Executive is abso- 
lutely controlled by it in all the details of his administration. It marks 
out the i)ath in which he shall walk, and it is able to jmnish him 
severely for any departure from it. The Legislature can not api>oint 
the judges ; but it can do more, it can command them what tliey shall 
do after they are appointed. All the legal justice we get is manufact- 
ured at the seat of government and sent down in bulk to tlie courts, 
where it is distributed among the people according to the wants and 



MISCELLANEOUS. 97 

merits of each individual. 'J"he Legislature regulates the practice of 
the oourl.;i, rnakoH and unmakes the rules of evidonoo, and furnishes 
the standard of decision for (isv.r^ cauwj. It defines all public onen>;es, 
and HupplicB the remedy for every private wrong. All rights and all 
obligations are protected and enforced in tlie way that it prescrilxjs, 
and can rjot be either protected or enforced at all without its aid and 
assistance. 

The members of the fx'gislature arc the custodians and trustees of 
all public property, 'i'hey can sell it, or give it away, or they can 
increase it by making additional purchases. The taxing power enables 
them to descend as deep us they please into the pockets of the j>eople 
of every class, and it ha« absolute control, and appropriates all the 
revenue after it is collectf^ji. 

What is a still higher consideration, they are the guardians of pub- 
lic morality. It depends upon them whether virtue shall be promoted, 
or vice and crime be encouraged. The theory is that the Ix:!gislature, 
being the supreme power of the State, commandi- what Ik right and 
prohibits what is wrong, and, in a certain sense, the mere command or 
prohibition does of itself make it right or wrong. What we are taught 
\xi the Bible is certainly true, that they who frame iniquity into a law, 
compel the people to become workers of iniquity. 

The time was, Mr. Chairman, when the State of Pennsylvania, 
then a mere colony, containing, perhaps, less than fifty thousand 
inhabitants, had a reputation throughout the earth for independence, 
justice, peaf;e, and good order — for everything that goes to make up 
the ha{»j)ine;is of an organized society. There was no portion of the 
world from which the eyes of the best and wisest men were not turned 
in admiration toward this community. All this resulted from the 
wise and just system of laws adopted by the illustrious founder of the 
colony. We lost our character as fast as we abandoned the principles 
upon which the early settlers conducte'd their legislation. As we can 
trace the grandeur, the honor, the high reputation of the State to the 
just laws of the earliest time, so we can read the history of her shame 
and her misfortunes in the statute-books of a later period. If we can 
now but unite the high tone of public morality which pervaded our 
legislation in the better days of the State with the wealth and science 
of the present generation, then you may hope to see this Common- 
wealth set higher than ever, the envy and the example of all the world. 
Without infusing into our new Constitution something which will 
have that effect, at least in degree, our institutions must, before a very 
long time, rot to pieces. 

What wc want above all things upon the earth, is honent Ifujulatlon ; 
and when I say we want it, I use the word in the double sense of need- 
ing it and lacking it. 

After all chat has been said upon this floor, it can not be denied 



98 MISCELLANEOUS, 

that the Legishiture of the State of Pennsylvania has habitually and 
constantly, for the last twenty-five years or more, betrayed the trust 
reposed in its members ; and this has gone so far that we must have 
reform if we would not see our institutions perish before our eyes. 
The horrible character and extent of the evil will be appreciated when 
you recall the solemn words of the gentleman from Dauphin (Mr. 
MacVeagh), the chairman of the Committee on Legislature. His posi- 
tion in this convention, to say nothing of his character and conscience, 
would make him extremely cautious not to be guilty, even of the 
slightest exaggeration, upon so grave and important a topic. He told 
us that corruption of the Legislature was a cancer at the heart of the 
State, which was eating its very life away. Another gentleman, the 
delegate from Erie (Mr. Walker), without intending to be at all con- 
demnatory, but rather the reverse, declared that it was no use to swear 
the members of the Legislature, because they were, to his certain 
knowledge, so utterly degraded that they would take the oath and then 
immediately lay perjury upon their souls, without scruple and without 
hesitation. I believe him, for he certainly knows whereof he affirms. 
The evil fame of this thing has gone forth through the length and 
breadth of the country, insomuch that the gentleman from Indiana 
(Mr. Harry White), the chairman of the Committee on Legislation, 
vouches for this statement : That when one of his colleagues in the 
Senate was traveling in Connecticut, and it became known that he 
was a member of our Legislature, that fact alone raised a presumption 
against his honesty so violent that there was some hesitation about 
letting him go into an unoccupied room, least the portable property to 
be found there might disappear when he went out ! There was a time 
when membership of our State Legislature was a passport to honor and 
admiration everywhere, from a Parisian drawing-room to the cottage 
of a peasant. Now that same Legislature is a stench in the nostrils 
of the whole world. 

There are about seventeen gentlemen on this floor who were for- 
merly members of the Legislature. Of course they passed through 
the furnace of that temptation without the smell of fire upon their gar- 
ments. While they have no sympathy with crime, they must naturally 
be anxious to make the best defense they can for the reputation of 
that body to which they once belonged. But, instead of a defense, all 
they can do is to hang their heads and acknowledge, with shame and 
sorrow, that the accusations are true. 

The cry against this corruption comes up, not only from every part 
of this House, but from every quarter of the Commonwealth. It is 
borne to us on the wings of every wind. In his speech of this morn- 
ing, the gentleman from Indiana (Mr. Harry White) acknowledged that 
the universal demand for a reform of these abuses had brought this 
convention together, and without that it never would have been called. 



MISCELLANEOUS. 99 

Nor is it a mere popular clamor. It is founded upon incontestable 
facts which have passed into the domain of history, and will stand 
there forever. 

As long ago as 1836 the Bank of the United States pushed its 
charter through the Legislature, partly by direct bribery and partly by 
a base combination of private interests, which were openly and shame- 
lessly avowed upon the face of the bill itself. The speculation ex- 
ploded in the course of a short time ; but it scattered destruction every- 
where, and brought desolation to a thousand firesides. It disgraced 
the character of the State ; destroyed her credit ; reduced her public 
securities to forty cents on the dollar ; branded her witli repudiation, 
and made her name a hissing by-word among all the nations. The 
l^erpetrators of that atrocious outrage were never called to any account, 
and their impunity was an invitation to all others to go and do like- 
wise. For years afterward, the other banks, combining themselves 
together, corrupted the Legislature and robbed the public according 
to the statutes in such case made and provided. 

In process of time another class of corporations grew up, composed 
of more adventurous men with larger capital and with a more jolausi- 
ble claim to public favor. 

I think that everybody who has looked at the history of our rail- 
road system will admit that in its original organization it was intended 
for good and proper purposes. It promised necessary improvements 
which could not have been made in any other way. One of them, 
organized to make a road from Harrisburg to Pittsburg, undertook 
the duty under a charter every part of which is marked with cautious 
wisdom. If that company had been kejDt within the limits originally 
assigned to it, its career must have been entirely beneficent. But its 
organization gave it an influence upon the Legislature which it used 
unsparingly. It swallowed up nearly all the i^roperty that the State 
ever had. It took it substantially as a gift ; the five or six millions it 
paid was no consideration for the fifty or sixty millions it got. But 
that is not all ; the gift of this immense domain was followed by a 
surrender, upon the part of the Commonwealth, of her right to collect 
her own revenue, amounting to millions more, and which belonged to 
her as much as the purse in your pocket belongs to you. 

Mr. Cutler : My friend alludes to the rej)eal of the tonnage-tax, 

Mr. Black : I do ; the learned gentleman understands me rightly, 
I refer to that fatal, that perfidious statute which the Legislature, the 
lobby, and the railroad company conspired to pass, disarming the State 
of her just right to collect the duty, which was her own, of three 
mills upon each ton of produce carried. It was a terrible wrong ; for 
it ground the face of labor to pour a great stream of wealth into the 
imperial treasury of a corporation which had no claim of right to it. 
By such dereliction of duty on the i)art of the Legislature, that cor- 



100 MISCELLANEOUS. 

poration has grown so mighty that its little finger is thicker than the 
loins of the Commonwealth which created it. I do not say that it 
bestrides your narrow State like a Colossus, for the ancient Colossus of 
Rhodes Avas but the image of a pigmy in comparison to this Colossus 
of railroads. Her stride is across the continent from ocean to ocean. 
Her head is in the clouds, and the arms of her gigantic power stretch 
out on either side from one horizon to the other. 

I hope my very good and most amiable friend from the city (Mr. 
Cuyler) will take no exception to what I am saying. I would fain 
speak no evil, either of him or his clients. I know that he never 
tampered with the Legislature, and never advised anybody else to do 
so. On his brow such a shame as that would be a shame to sit. Nor 
am I complaining of the corporators themselves. I Avill take it for 
granted, if he asserts it, that there is not a man belonging to the 
Pennsylvania Eailroad that would not run away from any proposition 
to make money for it or by it. He may say, if he pleases, that they 
have impoverished themselves by going about to do good for the pub- 
lic, or that, if they have a little more than their share of wealth, it has 
been thrust upon them against their will. But this I do say, that the 
several Legislatures which have stripped me and my fellow-citizens of 
our just rights, to clothe this corporation with imperial power, were 
treacherous to their duty and basely unfaithful to their high trusts. 

Other corporations have powers similarly bestowed and nearly as 
great. Four of them have had the advantage of the loose legislation 
at Harrisburg, so as to secure monopolies a thousand fold more op- 
pressive than that which made the name of Sir Giles Overreach infa- 
mous in the dramatic literature of England. What was the exclusive 
privilege of selling sweet wines in the reign of Elizabeth compared to 
the power which puts its own price upon every basketful of anthracite 
coal that is consumed in a country like this ? 

All of the companies represented in this body — nay, my friend on 
the left (Mr. Growen) need not protest. I do not say that the Reading 
Railroad is represented here. He represents the same constituent 
body that I do ; he is as faithful as I am ; and we are both as true as 
steel. But I have some idea that my learned friend on the right (Mr. 
Cuyler) is or was once connected — most honorably, of course — with 
the Pennsylvania Railroad as counsel. 

, Mr. Cuyler : Mr. Chairman, I beg leave to remind my learned 
friend that I have had his assistance in that capacity. 

Mr. Black : True ; those gentlemen, or some of them, have been 
my clients, and I desire to speak respectfully of them for that reason, 
if for no other. They have been, and they probably will be again, 
when they have a perfectly good and just case, and want a thoroughly 
honest lawyer. [Laughter and applause.] 

But, Mr. Chairman, the unfaithfulness of the Legislature is the sub- 



MISCELLANEO US. 101 

ject with which we are dealing. Let us pass to another point in the 
arraignment. After the corporators were through witli her — the State 
— she had left to her about nine million dollars — the remnant of a once 
magnificent fortune. That sum was deposited in what was called the 
sinking fund. It Avas placed there with special care. It was hedged 
around with constitutional interdicts. It Avas declared with the ut- 
most solemnity in the fundamental law itself that it should be applied 
to no other purpose than the payment of the public debt. Yet a com- 
bination of private interests was organized to rob the State of this 
last residuum. A ring was formed ; the Legislature and the lobby 
gave it their united sanction ; they dived into the sinking fund and came 
up with the nine millions in their hands. The grab was nearly suc- 
cessful ; it was defeated only by the interposition of tlie Governor's veto. 

These are only a few of the instances in which the Legislature 
has joroved treacherous. I have not mentioned one in a hundred. 
Nor have I selected the worst cases. Let any gentleman who wants 
fuller information look at the two papers made by Mr. Jordan, the 
late Secretary. 

The whole system, according to his description of it, is saturated 
with corruption from the crown to the toe. It has gone so far that 
the veto-power is utterly incapable of stopping it. He declares that, 
if tlie Governor would try to stoj^ it, combinations would be made 
against him, and render him as powerless as the driver of a runaway 
team after his reins are broken. 

But there is one fact stated by him which will astound you when 
it is mentioned. He says that the office of Treasurer is the most 
lucrative in the State. Its profits must, therefore, exceed the enor- 
mous sums received by the officers of the State-House row in this 
city. This, he says, induces a regular scramble for the treasurership 
on the first week of every session ; and then he adds that tlie votes 
. which elect the Treasurer are notoriously bought by the successful 
candidate. The significance of that simple statement of the Secretary 
will hardly be understood without a little reflection. Remember that 
the Treasurer is paid by a fixed salary. 

Mr. Howard : Five tliousand dollars per annum. 

Mr. Black : No man holding that office can, by any possibility, 
make out of it one cent beyond tlie five thousand dollars allowed him 
by law, without being guilty of some act as dishonest as the plainest 
stealing that ever was done by a common thief. Yet, somehow, 
the Treasurer of the State gets from his office enough to buy up 
a majority of the Legislature, and, after making all the deductions 
necessary for his reimbursement of that expense, there is enough left 
in his own pocket to enrich him beyond any other officer. These 
things, mind you, are not all done at once. The Treasurer does not 
take all of this sum at one grab ; nor does he buy up the members bj 



102 MISCELLANEOUS. 

wholesale. He lias to make a separate bargain with each individual. 
If you could suppose one of these Treasurers to be convicted of every 
distinct offense that he has been guilty of in a year, and then suppose 
him to be sentenced according to law, upon each conviction, Avhat 
would become of him ? At the most moderate calculation you can 
make, it would take him at least fifteen hundred years to serve his 
time out in the penitentiary [laughter], and for a portion of that 
period he would be accompanied by a majority of the members of the 
Legislature. [More laughter.] These are the men that are intrusted 
with the collection and expenditure of all your revenue, Avith the con- 
trol of all your public affairs, and with the power which gives or 
withholds security to your lives and property. 

But, Mr. Chairman, I do not know that we ought to blame the 
members of the Legislature too severely. Something ought to be 
allowed for the temptations with which they are surrounded. They 
walk among snares, and jjitfalls, and man-traps. In fact, they do not 
represent us. We are not governed by the men we send there. Our 
masters are the members of the lobby. They are organized into a third 
House, whose power is overshadowing and omnipotent. They propose 
the laws that suit themselves and the interested parties who send them 
there. The other Houses simply register their decrees. That our 
rights and liberties should be in such hands is disgusting in the ex- 
treme, for they are generally the most loathsome miscreants on the 
face of the earth. 

My friend from Dauphin (Mr. MacVeagh) spoke of legislation 
under the figure of a stream, which, he said, ought always to flow with 
crystal water. It is true that the Legislature is the fountain from 
which the current of our social and political life must run, or we must 
bear no life ; but, as it now is, we keep it merely as " a cistern for 
foul toads to knot and gender in." He has described the tree of lib- 
erty, as his poetic fancy sees it, in the good time coming, when weary 
men shall rest under its shade, and singing birds shall inhabit its 
branches and make most agreeable music. But what is the condition 
of that tree now ? Weary men do, indeed, rest under it, but they 
rest in their unrest, and the longer they remain there the more weary 
they become. And the birds — it is not the wood-lark, nor the thrush, 
nor the nightingale, nor any of the musical tribe, that inhabit the 
branches of our tree. The foulest birds that wing the air have made 
it their roosting-place, and their obscene droppings cover all the plains 
about them : the kite, with his beak always sharpened for some cruel 
repast ; the vulture, ever ready to swoop upon his prey ; the buzzard, 
digesting his filthy meal, and watching for the moment when he can 
gorge himself again upon the prostrate carcass of the Commonwealth. 
And the raven is hoarse that sits there croaking despair to all who 
approach for any clean or honest purpose. 



MISCELLANEOUS. 103 

Mr. Chairman, this state of things can not go on without bringing 
ns to utter destruction. It is getting worse and Avorse, and our insti- 
tutions must utterly perish if we do not stop this mischief. We may 
preserve the forms of republican government, but the substance will 
pass away, and with it will depart all that is perfect in politics, all that 
is 2)ure in morals, all that makes life, liberty, and property secure ; all 
that makes existence in a free country worth having. 

Shall we stand by and see this prodigious ruin rushing down upon 
us without an effort to arrest it ? No, surely not. Biit, seeing that 
we are sent here for the very purpose of stopping it, we will perform 
our duty, and, with the help of the living God, we will succeed in our 
mission. We will deliver our good old Commonwealth from the body 
of this death. 

But how shall that end be accomplished ? I admit that it is pos- 
sible to answer this question in different ways, when we come to the 
details of the remedy. But the common sense and common honesty 
of the people as represented here will make us unanimous at least on 
this — that the remedy shall be efficient, radical, thorough, and com- 
plete. We will not insult our constituents by offering them mere pal- 
liatives for the hideous malady with which they are afflicted. They 
know and we know that this is not a case for the quackery of half- 
hearted measures. We must cut the cancer out. A surgical opera- 
tion on a vital jiart of the body, if it be not entirely successful, always 
hastens the death of the patient. 

I am thoroughly persuaded that there is some fatal defect in our 
American system of legislation. It has failed ignominiously wherever 
it has been tried. It is not only here in Pennsylvania that we have 
rotten representatives and dishonest legislation. The same evil is 
found in the other States. It exists in its worst form and operates 
on its grandest scale in the Legislature of the Union. What is the 
cause ? 

The President of this Convention (Mr. Meredith) struck the point 
when, speaking of the misconduct of members of the Legislature, he 
said that it was because they were not responsible, and nobody was 
responsible for them. Washington said long ago that irresponsible 
power could never be safely trusted in human hands. By irrespon- 
sible power I mean power which may be abused without calling down 
any punishment upon the heads of those who commit the abuse. In 
this respect all our Constitutions are anomalous. They are a series of 
commands without any sanction to enforce them. This is particularly 
and emphatically true with regard to those who execute the supreme 
power of making your laws. You trust the members of your Legis- 
lature implicitly. The framers of the Federal Constitution, who were 
imitated in all the States, seem to have thought of legislative corrup- 
tion as the Spartans did of parricide, that it was an impossible crime. 



10 i MISCELLANEOUS. 

'The Supremo Court of the United States, in Fletcher vs. Peck, in- 
llucnced by this delusion because it was embodied in the Constitution, 
declared that they did not believe in tlie corruption of a State Legisla- 
ture, though it was incontestably proved, admitted by the parties, and 
found to bo true by a special verdict in the very case before them. 
Now, if anything is established by all human experience, it is that no 
rule of action, no law, no commandment will ever be observed by 
men who can promote their interests or gratify their passions by 
breaking it, unless they are deterred by the fear of retributive justice. 
If you desire men to do right, you must punish them for doing wrong. 
Tliis may seem like a low view of human nature, but we can not help 
it ; we are as wo are made. Men are not equal to angels, and even the 
angels fell. In all cases every rule of conduct is coupled Avith a pen- 
alty for its violation — that is in all but ours, and it is true of ours in 
all except the fundamental and most important part of it. This is 
also the principle which runs through the divine law. Almighty Uod, 
who created the heart of man, understood the impulses which would 
govern it, and he annexed a sanction to every one of his command- 
ments. There is no hrutum fulnioi in the Bible. The first law that 
ever was made for the regulatiou of human conduct is, in this respect, 
the model upon which every other has been framed: "On the day 
thou eatest thereof thou shalt surely die.'' And if Satan had not 
managed to convince our first parents that the penalty would not bo 
intlicted, the fruit of the forbidden tree would never have been 
tasted. 

Can there be any reasonable doubt that corruption reigns in the 
Legislatures of all the States and in Congress, for the reason that it 
can bo practiced with perfect impunity ? Can you or do you expect 
anything else from a body of men whom you surround Avitli tempta- 
tions of every kind to lure them into crime at the same time that you 
tell them they shall suffer nothing if they commit it ? Such a system 
can not and it will not come to good. You might as well hope to 
gather grapes from thorns or ligs from thistles. 

In deciding upon the nature of the punishment which those great 
criminals ought to suffer, we must not consult our blood but our judg- 
ment. Our new laws must have no ex post facto operation, and the 
lienaUies, thougli certain, must be modera.te even for future offenses. 
No sentiment of vengeance must seek its gratification here. If the 
honest citizens of the State who have been so basely betrayed by these 
miscreants would obey the im]nilse of their natural indignation, and 
had infinite power to work their will upon tiiom, they would set them 
upon the remotest battlement of God's creation — far out upon the 
borders of chaos and old night — and tlien lash them naked around the 
circumference of the universe through all eternity. But human pun- 
ishment can be inflicted only for the purpose of defending society ; 



MISCELLANEOUS. 105 

all beyond that must bo left in (ho IkuuIs of divino justico : "Venge- 
ance is mine, siiitli tho Lord ; I will ropay." 

"We must look, theroforc, to see by what moans wo can pvcvcnt 
these crimes, and confine ourselves solely to defensive measures. 
AVhilo Avo should avoid that kind of mercy to tho guilty which is 
cruelty to tho innocent, we must not lay a liostilo linger on the most 
atrocious criminal, except in so far as that may be necessary to reform 
him or to deter others. To do even that would not be eitiier wise or 
just, unless we accompany it by some regulation which will relieve 
them from the temptations to wliich thoy are now exposed. It would 
not be fair to surround membors of the Legislature with snares set 
for their virtue, and then punish them when they lose it. Let us 
weaken the motives to evil at tho same time that wo strengthen those 
which impel toward right. So may the iiropondoranoe always be on 
the proper side of the scale. 

I will now enumerate the measures in which we propose to embody 
these vital reforms. I hope the convention will believe, as I do, tluit 
if adopted they may save us from tlie greatest of all public calamities, 
and at the same time give no trouble or even inconvenience to any 
honest and upright man, whether in or out of the Legislature : 

1. Confine tlw power of the Legislafure within limits as narrow as 
possible ronsistentli/ with a proper regulation of our affairs. — This 
can not bo done to any great extent. A free people must have legis- 
lation, and tho freer thoy are the more they need it, for there can be 
no liberty witliout law. The various opinions aiul diversitiod interests 
of such a peoi)le as arc ours, multiply the laws that are necessary for 
their government. After limiting tlie power of the Legislature as 
much as you can, you must still leave it in possession of a groat deal. 
Indeed, you can scarcely diminish it in any perceptible degree ; and 
Avhat is left in its hands is liable to be as friglitfully abused as if none 
was taken away. 

3. Prescribe certain forms of proceeding which will insure dc- 
libcration and pnbliciti/. — I need not specify those forms. You lind 
them in the report. They require a bill to be reported by a commit- 
tee, and then read through and thi-ough, not once or twice, but three 
times in each House ; the final vote to be taken by yeas and nays, and 
recorded ; each bill to have but one object, and that expressed in its 
title ; every law to be preceded by a preamble expressing the reasons 
of the Legislature for assenting to it ; the final passage of the law to 
be concurred in by a majority of membors elected to both Houses, 
and, after passage, the title of it to be publicly read immediately 
before it is signed by the Speaker. These forms will do much to pre- 
vent hasty and thoughtless legislation, and make it much more diffi- 
cult than it is now for members to commit frauds upon one another 
by clandestinely procuring the passage of bills which a majority do 



106 MISCELLANEOUS. 

not consent to. But tliey will not throw any serious impediment in 
the way of injurious legislation to which a majority of the members 
can be induced to consent. The most iniquitous laws we are cursed 
with have been passed without resort to the tricks which these forms 
are intended to prevent. Corrupt combinations are made every day 
which carry a majority, with their eyes wide open, through all frauds, 
and, as Secretary Jordan tells us, strong enough to break down the 
Executive, armed though it be with the veto. While, therefore, these 
provisions are salutary and desirable, they are not sufficient of them- 
selves to save us. I proceed to show what more seems to be necessary. 

3. Define hriherij so as to include all sorts of corruption.— V^han 
a member is to be corrupted, he is not in one case out of a hundred 
offered money in the plain form of a quid pro quo. Almost never is 
a contract made, in words that the vote shall be sold for a certain price 
paid down as promised. The money is presented as a gracious gift or 
as a testimonial of the donor's affection— it is slipped into the pocket 
of the member without a word, or it is placed under his pillow, where 
he finds it. Most commonly the object is reached by a wider circum- 
bendibus. The member is employed as attorney for the party interested 
in his vote, and the bribe comes in the shape of a fee for other services. 
It is not at all unusual for members who are considered respectable to 
let themselves bo bought in this way. Still oftener the end is accom- 
plished by giving the member an interest in the subject-matter whose 
value is to be affected by his vote. The stock of a corporation is dis- 
tributed "where it will do most good," or the member is taken as a 
partner into some speculation which he is to promote by procuring 
legislation. In a thousand ingenious ways it may be made his private 
interest to disregard his public duty. All these ways are equally cor- 
rupt, and the people owe it to themselves to stop them. 

4. Extinguish the lobby at once and forever, by malcing all pri- 
vate solicitation of members by interested parties or their agents a 
criminal offense. — This is so obviously proper and right that it can 
hardly be necessary to vindicate it. The hirelings of corruption have 
organized themselves into a " third house," they have usurped the 
power which the Constitution gives to the other two : they exercise 
the supreme legislative authority of the State ; the Senate and House 
of Representatives are degraded into tlieir mere tools, and I repeat 
that they are the most loathsome wretches that are suffered to live in 
the world. All men agree to this as a matter of fact. Nobody 
doubts the omnipotent power of the " third house," or the evil pur- 
poses for which it is used, nor has any one ever suggested the least 
possible good that can result from its continued existence. The total 
abolition of this "third house" is demanded not only to secure the 
weak from temptation, but as a measure of protection to tlic strong 
and upright from insult and annoyance. By adopting it you purify 



MISCELLANEOUS. 107 

the Legislature instantly and restore the honor of your government ; 
for there never has been any bribery, corruption, or other improper 
influence which did not come privately and secretly in that way. 
Let no man say that we desire to cut off communication between 
the representative and his constituents. All public means of ex- 
pressing his opinions and wishes are to be left open ; the right of 
petition shall be as sacred as ever ; the privilege of being openly heard 
before committee shall be carefully secured ; the right of the people to 
assemble and speak their will, or to discuss their affairs through the 
press, shall not be denied. The representative ought to be controlled 
in some measure at least by an enlightened public opinion, but it is not 
necessary for that purpose that he should open his ear to the insult- 
ing whispers of the miscreants who now dog him uji and down the 
board-walk, and follow him to his lodgings, and stand behind his chair 
when he votes. 

5. Make all fraudulent acts of tlie Legislature void. — As the law is 
now held by all the courts, a legislative grant, whether of money, lauds, 
or privileges, is sacred and inviolable, no matter how clearly you can 
prove that it was obtained by fraud, deception, or bribery. This doc- 
trine was established seventy years ago by the Supreme Court of the 
United States in Fletcher vs. Peck. The case itself was a fraud ; it 
was made up at Boston by two men who lived in Tennessee, both of 
them having the same interest in the same fraudulent grant, an^ the 
counsel who pretended to argue it was employed and paid to give the 
cause away. This is not publicly known, but I assert it on the author- 
ity of Judge Catron, who knew the parties well, and was often told by 
both of them that the case was a sham, and the judgment collusive. 
The principle apparently decided by it is not found in the common 
law, and is directly in conflict with common sense and plain justice. 
It violates all the analogies of our jurisprudence. Not only private 
grants bnt judicial decrees and executive concessions are pronounced 
mere nullities when brought into contact with any kind of corruption. 
Yet the grossest fraud upon the public or upon individuals when com- 
mitted by or through the Legislature is consecrated and protected. It 
has wrought intolerable mischief. It gives infinite encouragement to 
the worst form of public immorality. It shelters every villain of a 
certain class Avho can get away with his booty ; and stifles inquiry into 
the worst Avrongs by making it practically useless. If legislative acts 
were void from corruption, what man or what corporation would think 
it worth while to pay bribes ? We can and ought to abolish this ab- 
surd and iniquitous principle. Let it be done, with such reservations 
as will prevent any loss to innocent people, but let ns cease to pay a 
premium for legislative rascality. 

6. Siuear or affirm every member before he takes his seat that he 
tvill not only support hut obey and defend the Constitution in all 



108 MISCELLANEOUS. 

things. — The oath to sup]iort it, required by the Federal Constitution, 
was intended as a mere test of political opinion, to exclude the ene- 
mies of the new government from office. To support does not mean 
to obey. You support the church when you rent a pew and pay 
the preacher, though you do not square your moral conduct by its pre- 
cepts. But this preliminary oath being promissory in its nature, I do 
not think it just to make the subsequent violation of it punishable 
as perjury. Where it has been taken in good faith, with pure intent 
to keep it, a breach of the promise it expresses does not justify a charge 
of false swearing. That among other reasons makes it necessary that 
there sliould be another oath or affirmation upon which perjury can be 
assigned. 

7. Require every memhsr at the close of his last session to render 
an account of his stewardship to his oion constituents at home. — Make 
him swear or affirm, specifically, that he has obeyed the Constitution, 
that he has not listened to private solicitation, or taken any bribe, or 
knowingly done any other act in his official capacity interdicted by the 
fundamental law. If his hands are clean, he will be willing to show 
them. If they are not, and he declines to show them, the public can 
have no further need of his services, and he should not be eligible to 
the same or to any other office. The necessity of taking this last oath 
will effectually-cut him off from all intercourse with known lobbyists, 
and free him completely from improper influences, for unless he is a 
moral monster, he will not do a thing with the preconceived determi- 
nation to swear that he has not done it. I do devoutly believe that 
this measure, connected with the others proposed, will make our legis- 
lation as pure as it was in tlie days of William Penn. 

In conclusion, let me call the attention of gentlemen to the resem- 
blance between these provisions and those which prevail in analogous 
cases of a private nature. A member of the Legislature is charged with 
the administration of the most important trusts known among men. 
If anybody should be held, and held hard, to his duty, it is he. Yet 
we only propose to enforce his obligations by the same means which 
we use against aprivate trustee. When an executor, administrator, or 
guardian takes his duty upon him, you swear him to obey the laws. 
When he goes out you compel him to render an account, on oath, in 
which he specifies the particular acts he has done, and, if he swears 
falsely, you indict him for perjury. And if he serves his own interests 
by making a contract in fraud of his cestui que trust, you hold his act 
to be void. Why should not the great trust of a legislator be subject 
to the same rules ? Is it because you are willing the public trust shall 
be betrayed, but desire the private one to be honestly administered ? 
This will hardly be the answer of those who oppose us. What it will 
be I know not. 



MISCELLANEOUS. 109 

A GREAT LAWSUIT AND A FIELD FIGHT. 

"Chapters of Eric, and othor Essays." By Charles F. Adams, Jr., and Henry Adams. 
Boston: James R. Osgood & Co. 1871. 

"An Inquiry into the Albany and Susquehanna Litigations of 18(39, and Mr. David 
Dudley Field's Connection therewith." By George Ticknor Curtis. New York : D. 
Appleton & Co. 1871. 

In" the years 18G9 and 1870 there occurred a contest for the control 
of the Albany and Susquehanna Railroad which, in some of its feat- 
ures, is among the most remarkable that this generation has known. 
It concerned vast material interests, and, from peculiar circumstances, 
engaged an amount of public attention not often bestowed on such 
subjects. It produced a long series of litigations, angry, complicated, 
and multifarious. The judicial authorities were wholly unequal to 
the task of settling the dispute ; for, instead of composing the strife, 
their intervention only intensified it, until at last the parties, mutually 
scared by the cross-fire of conflicting injunctions which the courts 
were launching at all alike, sought relief in the more peaceful arbitra- 
tion of pike and gun. When this was stopped by the Executive, the 
newspapers took up the war, and going over the whole ground again, 
they not only canvassed the rights and wrongs of the parties, but as- 
sailed counsel and judges with most unlimited censure. The charac- 
ter of one gentleman in particular (Mr. David Dudley Field), noted 
hitherto and honored not less for high integrity than for profound 
learning, was traduced witli a license which knew no bounds. 

The two books whose titles stand at the head of this article are 
chiefly interesting because they contain the opposing views of two very 
able men upon the whole of this controversy ; and the recent republi- 
cation of both, with notes and other addenda, is a new appeal to the 
great tribunal of public opinion. Before final judgment we propose 
to say a few words more, but, being nobody's attorney, and represent- 
ing no personal interest, we must be considered as speaking in the 
character of amicus curice. 

Mr. Ourtis's great advantage over Mr. Adams, and indeed over 
every one else who has discussed this subject, consists in the high tone 
of his essay and the spirit of perfect fairness which pervades it from 
beginning to end. Though a great master of rhetoric (as the biogra- 
pher of Webster ought to be), no provocation tempts him to any dis- 
play of it here ; his style is eminently judicial ; his statements are 
severely accurate, and for all his averments he quotes chapter and 
verse in a way which makes contradiction hopeless, llis only apparent 
ambition is to build up a solid wall of argument ; he constantly tests 
its perpendicular with the plummet, and strikes every stone with the 
edge of his trowel to make sure that it lies firm in its place. 

Mr, Adams is an hereditary bondsman to the truth ; by his blood 



110 MISCELLANEO US. 

and birth he owes service to the riglit, and if he flies from it we have 
a warrant to reclaim him as a fugitive. We do not believe that he 
would lend the authority of his great historical name to a willful mis- 
statement, or that he would even take up an evil report against his 
neighbor and help to propagate it for the mere purpose of gratifying 
anybody's malevolence. But his intense dislike of James Fisk, Jr., 
seems to have unbalanced his judgment upon every subject with 
which Fisk has the remotest connection. This is the one masterless 
passion which sways him in all the moods and tenses of his thought. 
Fisk is his htte noire. His enmity to Fisk is extended not merely to 
Jay Gould, Fisk's partner in business, but it embraces all Fisk's asso- 
ciates in the management of the Erie Eailroad, and takes in every 
lawyer who has ever defended his rights and every judge who has ever 
allowed him to use the legal process of his court. The moral sense of 
Mr. Adams has been offended, perhaps very justly, by something he has 
seen in Fisk's conduct or character ; and his indignation has become 
so preternaturally excited that he likes or loathes all other men as 
they happen to be for Fisk or against him in any of his contests^ 
whether right or wrong. Inasmuch as Mr. Adams must necessarily 
be, and is without doubt, a man of sound moral principles, we give 
this as the only rational explanation we can furnish of his attack upon 
Mr. Field, and of what needs explanation quite as much, his idolatrous 
veneration of Eamsey and his pronounced admiration of Judge Dar- 
win Smith's decision at Eochester. 

It was not necessary for Mr. Curtis to tell us that he had no per- 
sonal knowledge of or association with Mr. James Fisk, Jr., or his 
partner Jay Gould. Nobody would have suspected that grave and 
learned gentleman of any close companionship with a man so outre, 
irregular, and eccentric in his tastes and habits as Mr. Fisk. If igno- 
rance of Fisk and all that Fisk inherits be a virtue, then we can claim 
to be as virtuous as anybody. But we make no pretensions whatever 
to that outrageous and extravagant righteousness which prompts Mr. 
Adams not only to denounce Fisk himself, but to assail every man 
that does him justice and Tieap laudations without measure on all who 
try to swindle him or his associates. 

Most of our readers will altogether fail to understand the merits of 
the controversy or the incidents Avhich attended it unless they make 
themselves acquainted, at least to some little extent, with the singu- 
larities of New York jurisprudence, produced partly by what is called 
a reform in the Code of Procedure, and partly by a most anomalous 
and extraordinary organization of the judicial system. A moment's 
attention to this will explain our meaning, and show that the confu- 
sion, misapprehension, and total failure of jiistice which took place in 
these cases, while they could not possibly have happened in any other 
country, could scarcely have been avoided in New York. 



MISCELLANEOUS. HI 

It was in 1830 that Lord Brougham — that many-sided man, who 
spoke and wrote continually on every conceivable subject in literature, 
science, and art, but who knew less and cared less about the science of 
his own profession than about anything else — of whom 8ugden said 
that it was '' a pity the honorable gentleman did not know a little law, 
for he would then know a little of everything " — extended his noto- 
riety by an elaborate and plausible speech on law reform. It was easy 
to point out defects in any system, and that of England, though ex- 
pansive in its nature, had not grown with the growth of the nation. 
Some of its excrescences needed to be rubbed off ; some of its forms 
were effete ; a part of its process was costly and useless ; its machinery 
was clogged with the quantity of business which the increased com- 
merce of the country had thrown upon it. Brougham's eloquence 
had the effect to stir up the leading minds of Parliament and call 
their attention to the necessity of some changes. But they went 
about it cautiously. They cheapened the law to the suitor by estab- 
lishing new tribunals, they swept away impediments that stood in the 
path of justice, and they abolished many offices which merely encum- 
bered the courts. But with reverent care they preserved the exquisite 
logic which for ages has been crystallizing into the forms of pleading. 
Instead of throwing it loose and lawless to the mercy of ignorant pre- 
tenders, it was made more exacting and precise than before : the 
declaration must give perfectly accurate notice of the demand ; a plea 
must disclose the very defense to be proved ; the general issue in most 
cases was abolished, and special pleading was made more special than 
ever. Nor did they for a moment think of dispensing with those 
rules of evidence which the experience of mankind had shown to be 
necessary to the successful investigation of truth. 

But Brougham's speeches, together with the maledictions of Ben- 
tham, created a far profounder sensation in America than in England. 
Here they produced among many influential men a passionate appetite 
for radical revolution. Everything that was old or English began to 
be looked on with contempt ; whatever had been held in reverence by 
our fathers, on this or on the other side of the water, was set down as 
worthless ; even the writ of habeas corpus and trial hy jury were 
strongly suspected of being obsolete humbugs, and the public mind 
was prejoaring itself to see them trampled under foot without an effort 
to save them. Good and great men, as well as the weak and the 
wicked, were subjected (of course for opposite reasons) to these 
malign influences, and both classes were in equal haste to bury the old 
system out of sight. 

In New York, Avliere this feeling was strongest, the revolutionary 
party did itself honor by accepting the leadership of the ablest and 
most distinguished jurists of the State. A full Code, as comprehen- 
sive as that of Napoleon and as minute in its details as that of Living- 



112 MISCELLANEO US. 

ston, was the work of their hands. They hiid it at the feet of the 
Legislature, and that body adopted the Code of Procedure, but re- 
jected all else that was jiroposed. They put into operation Just 
enough of it to abolish the distinction between law and equity, with- 
out preventing the possible abuses of either ; to confound all remedies 
by mixing them together and making one form of action serve against 
every species of wrong ; and to banisli every trace of science from 
pleading. What might have been the success of this empirical raid 
on the common law if the whole Code had been adopted, it is impos- 
sible to say ; but the experiment as actually made is not merely a fail- 
ure — it is a disastrous visitation upon the people of the State. In- 
stead of the cheapness, certainty, and promptness which the reformers 
no doubt intended to promote, the unlucky suitor is vexed with end- 
less delay, impoverished by enormous costs, and at every turn is liable 
to be tricked and deluded to his ruin. The new Code encourages igno- 
rance, rapacity, and fraud, by inviting everybody to practice it who 
can not live at any other trade, and gives a large share in the adminis- 
tration of justice to a class of men for whom the English language had 
no name until a new epithet of contemj)t was added to the vocabulary. 
The separate administration of law and equity used to be a stand- 
ing subject of invective with the reformers. A court of law could not 
refuse judgment in favor of a plaintiff who claimed a legal right ; but 
if the defendant had an answer founded on a paramount equity, a 
chancellor might enjoin his adversary not to take advantage of his 
mere legal superiority. It was thought extremely absurd that the 
authority of two tribunals should be invoked to do justice in the same 
case between the same parties, and that what was called right in one 
court should be pronounced wrong in another. We do not stop now 
to defend, as we might, the wisdom of circumscribing the power of 
judges and assigning different functions to different classes of them. 
But under the Code, the wall of partition between law and equity is 
completely broken down ; the law judges are all chancellors, and, vice 
versa, all chancellors are law judges, and they administer both equity 
and law in forms so exactly alike that the judges themselves do not 
know, and are not bound to know, which is which. There is, there- 
fore, no possible excuse for employing more than one tribunal in the 
same cause. Nevertheless, the frequent and allowed practice is for 
the defendant, instead of answering a complaint, to file a counter- 
complaint against his adversary. An injunction is the favorite weap- 
on in all contests. Its simplicity commends it to the professional 
mind, as the simplicity of the knout and the bastinado makes them 
dear to the heart of the Muscovite and the Turk. It can always be 
got for the asking, if the request be accompanied with an affidavit 
that somebody wants it "to the best of his information and belief." 
It is granted of course, ex dehito jitstUicB, without examination and 



MISCELLANEOUS. II3 

without notice to the opposite party ; it is granted privately ; it is not 
put on record ; it is not placed in the hands of a public officer to be 
served or executed, but the judge gives it to the complainant himself or 
his attorney, who keeps it a secret if he pleases until he catches his vic- 
tim at a disadvantage, and then springs it upon him from his pocket. 
Unfortunately, however, this is a game that two or a dozen can play 
at as well as one. The party enjoined by one judge can go to another 
judge equally facile, and get an injunction against his adversary, com- 
manding that the order of the first shall be disobeyed. Or a third 
person may seek a third judge, who will readily throw his force 
against either or both. There are thirty-three judges in the State, of 
equal grade and co-ordinate power, elected in eight districts, and re- 
siding in different regions, to whose jurisdiction there are no territo- 
rial limits except the lines of the State. Each one of these claims 
the right, and exercises it, of enjoining whom he pleases, without 
regard to the cognizance which may have been previously taken of the 
subject or the parties by one or more of his brethren ; and his pro- 
cess, orders, or decrees, are equally potential in every part of the 
State- A man enjoined by a judge in New York city to do a thing 
may be ordered by a Buffalo judge not to do it ; and a Brooklyn judge 
who has commanded one of his constituents to refrain from a particu- 
lar act, may be met the next day by a counter-order from Eochester 
in which the same party is solemnly directed to refrain from refrain- 
ing. These injunctions are not mere bruttim fulmen ; the judicial 
guns on either side are loaded to the muzzle with the heaviest metal 
they can ram down. Each judge demands implicit obedience to his 
own order, and the penalty of disobedience can not be escaped by 
showing that the parties are under conflicting orders from another 
quarter ; for the learned magistrates who administer the Code act on 
the principle of that ultra-democracy which insists that one man is 
not only as good as another, but a great deal better. It happens thus 
that, in a case involving numerous and com23licated interests of great 
value, all persons concerned get hemmed in with injunctions from 
various parts of the State, commanding them by authority, which they 
dare not question, to do everything, and at the same time to do noth- 
ing. They can neither move nor stand still without incurring a pen- 
alty somewhat like that of outlawry in feudal times. Their cause may 
be pending in a score of courts at once ; a j^arty who prosecutes or de- 
fends in any one of them is guilty of contempt, and, if he fails, a 
decree is pronounced against him by default. His condition is like 
that ascribed by Lorenzo Dow to a predestined reprobate under the 
creed of Calvin : 

You shall and you sha'n't — you will and you won't ; 
You'i'e condemned if you do, and you're cursed if you don't. 



114 MISCELLANEO US. 

When all the parties are bound hand and foot, so that justice or 
even an investigation in the courts has become a thing of impossible 
attainment, the case is considered about ready for trial in the news- 
papers, where the suitors, the counsel, and the Judges are plastered 
with praise, or covered with odious imputations, according to the vari- 
ous interests and tastes of those who engage in the discussion. We 
venture, though with some diffidence, to pronounce this rather a poor 
substitute for the trial by battle which would have been accorded in 
the middle ages. So thought the parties in the Susquehanna and Al- 
bany suits ; for they actually loosened the deadlock of the courts by 
physical force. It is true that the champions did not go out on the 
open plain, and, after taking an oath against witchcraft, beat each 
other with sand-bags to show whose cause was holiest in the sight of 
God ; but they did try whose Judges had made the most righteous in- 
junctions by rushing against one another with colliding locomotives. 

It is due to the framers and original supporters of the Code to say 
that they never contemplated the frightful perversions which it has 
been made to undergo, nor are they at all responsible for the absurd 
arrangement of the Judicial department which causes these scandalous 
conflicts of Jurisdiction. 

We devoutly believe that a fair consideration of the Albany and 
Susquehanna litigations will throw the blame of them on shoulders 
which have heretofore not borne their proper share. We will briefly 
present the most important of the facts pertaining to this cause ce- 
Uhre, and leave the public to Judge whether the attacks on the long- 
established fame of Mr. Field and his partners have any foundation in 
truth. The same public may determine if it can, '* by what conjura- 
tion and most mighty magic" the Eamsey party have managed to 
invest their leader with the reputation of a persecuted saint. If we 
happen to have any readers who feel an interest in the most important 
of all worldly concerns — the distribution of Justice among the people 
of a great State— some of them may be led to inquire if the system of 
Judicial procedure which produces such intolerable evils can not be 
amended, or, if change be impossible, Avhat amount of passive fortitude 
is required to bear it as it is : 

". . . how end this dire calamity ; 
What re-enforcement may he gained from hope; 
If not, what resolution from despair." 

The Albany and Susquehanna Eailway Company was incorporated 
in 1852, and began work in 1853, but the line was not opened for 
traffic until January, 1869. It stretches a distance of one hundred 
and forty miles from Binghamton, where it connects with the Erie, to 
Albany, whence its freights may be carried by direct routes to divers 
parts of New England. The Erie had previously sent its branches 



MISCELLANEOUS. 115 

into the anthracite deposits of Pennsylvania, and needed the use of 
the Albany and Susqnehanna as a means of getting the coal it brought 
to Binghamton as far as Albany on its way to the New England mar- 
ket ; and it was, of course, the interest of the new road to take all the 
business it could get in that way. Its track had been laid on the ex- 
ceptional broad gauge of the Erie, which shows that its projectors had 
from the beginning contemplated that it would support and be sup- 
ported by that line. It would, undoubtedly, have been improj)er for 
the great company to take control of the smaller one, or to appro- 
priate its earnings ; but their geographical relations, the similarity 
of their structure, their duty to the public, and the mutual interests 
of their proprietors, all required a cordial co-operation in business. 
Nevertheless, there was no special arrangement to that end, and no 
proposition to make one, until the stockholders of the Albany and 
Susquehanna solicited the aid of the Erie to rid them of the dangerous 
dishonesty which had crept into the management of their own internal 
affairs. 

It was the great misfortune of the Albany and Susquehanna cor- 
poration to have trusted one Joseph H. Ramsey as its president and 
financial manager. He did not prove himself faithful. The bargains 
by which he raised money at usurious rates were not only disapproved 
by his constituents : they were indefensible on the score of common 
prudence. When his own interests were in conflict with the duties of 
his trust, he showed a lack of qualities even more important than 
sound Judgment. He paid himself on one occasion 116,000 for ser- 
vices which he alleged he had rendered the company as its attorney. 
He made the bill and settled it, absolutely refusing to let the finance 
committee pass upon it. He made a contract on behalf of his corpora- 
tion with an express company, in which he ruinously sacrified the in- 
terests of the party he professed to represent ; it turned out afterward 
that he was a partner in the express company. Mr. Adams has proudly 
claimed for him, as a great merit, that he went to the Legislature "in 
behalf of the enterprise." Of such are the Albany rings. He ran for 
Congress once, and while he was a candidate he issued three thousand 
free passes over the road to as many electors, whose favor he sought to 
win at the expense of the company. At the time of his suspension 
from office he owed the company $20,000, which he had taken from 
its funds for his own purposes, on his own terms, and by his own 
leave. Whether he subsequently disgorged this money does not ap- 
pear. 

It was manifest to the stockholders that these practices could not 
be continued without ruin to their prosperity and infamy to the char- 
acter of their corporation ; and they determined to stop them. But, 
like many other reformers, they committed the fatal mistake of adopt- 
ing half-way measures. Instead of turning Ramsey out neck and 



11(5 MISCELLANEOUS. 

heels, they re-elected him, but by a yery decided vote chose a, majority 
of directors strong enough, as they thought, and true enough, to con- 
trol his action and compel him to be honest. Seeing their forbear- 
ance, and probably mistaking it for timidity, he was hardy enough to 
tell them to their faces that he would permit no such oversight of his 
conduct as they proposed ; that he would not belong to a divided di- 
rection ; that at the next election either he or his opponents must go 
out. The stockholders accepted the issue thus tendered to them, and 
to maintain that issue was the object of all their subsequent struggles. 
Thus the corporators were hopelessly divided into two hostile factions. 
One of them, known through the legal proceedings as the Church 
party, and holding a large majority of the stock, was bent on having 
officers whose fidelity they could trust ; and the other, led by Eamsey, 
wished to subordinate all the interests of the company severely and 
constantly to his own. 

Tlie next election was to take place in September, 1869, and the 
parties began without delay to look around them for the material of 
the contest. The authorized capital of the company was $4,000,000, 
divided into 40,000 shares of 1100 each. Of these 40,000 shares 17,238 
were outstanding in the hands of lona fide, holders, who had paid full 
price for them, and whose right to vote them could not be disputed. 
The Church party were thoroughly satisfied that they and others op- 
posed to the existing management held a clear majority of the legal 
and honest shares. On the other hand, Eamsey was not without ex- 
pedients by which he hoped to win. About 2,400 shares had been 
forfeited by the failure of the original subscribers to pay for them. 
These were reissued by Eamsey to one David Groesbeck for twenty-five 
cents on the dollar, in direct violation of a general law which forbade 
any railroad company to sell its stock for less than par. Groesbeck 
was not only unscrupulous enough to become a party to this fraudu- 
lent over-issue, by which tlie honest stock would be watered, but he 
was entirely willing to vote it as Eamsey, his partner in the fraud, 
might desire. When the latter gentleman discovered that he could 
not balance the real stockholders in that way, he resorted to another 
trick, which was, if possible, baser as well as bolder. He got together 
certain of his confederates secretly at his own house, and distributed 
among them certificates for 9,500 shares of stock, for which they had 
not paid, and did not mean to pay, a single cent. It was necessary 
that something should appear to have been paid, but the recipients of 
the shares could not or would not furnish any money for that purpose. 
Eamsey himself had no cash of his own to advance, but he went to the 
company's safe, of which he had the key, took out bonds, the property 
of the company, amounting to 1150,000, pawned them to the same 
Groesbeck who had taken his former over-issue, and thus raised enough 
to pay ten per cent on the 9,500 shares. It is not easy to conceive a 



MISCELLANEOUS. II7 

transaction more thoroughly iniquitous than this. It was a double 
fraud : it was intended to stuff the ballot-box with bogus votes, and 
make the stockholders pay the expenses of the cheat upon themselves 
out of their own funds. That it might want no aggravating circum- 
stance, it was planned and executed by a trustee whose solemn duty it 
was in law and conscience to protect and defend the rights of the in- 
jured parties against the knavery of others — not make them the vic- 
tims of his own. 

In the mean time the Church party, not knowing of these things, 
and unable to foresee what Ramsey might do, thought it prudent to 
re-enforce themselves by getting as many of the 'bona fide shares into 
their hands as possible, and thus make their majority large enough to 
balance any fraud which he could carry out. A considerable amount 
of the stock was held by towns along the line of the road, and it could 
not be got for less than par. In these circumstances they applied to 
the Erie managers for assistance in money to buy the shares which 
might be needed. The request was acceded to. There was no lawless 
intrusion of Erie, or of Fisk and Gould, into the affairs of the Albany 
and Susquehanna ; no volunteering in the dispute between Eamsey 
and his constituents ; no compact for any undue share in the control 
of the road. The men of the Church party desired to save their cor- 
poration alive out of the hands of Ramsey, and the Erie managers 
knew that by assisting them they would promote the true interests of 
every honest stockholder in both companies. Where motives so fair 
and wise and obvious exist for one party to make, and the other to 
accept, a business proposition, it is not necessary, but it is shameful, 
to allege corruptions which there is nothing to jorove or even to sug- 
gest. 

When the assistance of the Eric men was assured to them, David 
Wilber and others of the Church party proceeded by the authority of 
Mr. Gould, and with money furnished by him, to buy Albany and 
Susquehanna stock wherever they could get it ; and they secured a 
considerable number of shares, mainly from the towns, paying full 
price for them. By the 3d of August the Church party, and the 
friends of the company who acted with them, had 11,400 shares of the 
undisputed stock, leaving only 6,139 in other hands. Assuming that 
Ramsey might get all these, he must be beaten nearly two to one. 
Even if his friend and fellow-sinner Groesbeck should vote the 2,400 
fraudulent shares held by him, the Church men would still have a 
majority of 2,8G4. Judge Barnard, at the instance of Mr. Bush, a 
member of the Church party, put Groesbeck liors de coinbat by an in- 
junction which commanded him to deliver up his stock into the hands 
of Mr. AY. J. A. Fuller, who was appointed to hold it as receiver, so 
that Groesbeck could not vote it unless he would come forward and 
show that he had a title, which of course he did not attempt to do, 



118 MISCELLANEO US. 

knowing very well that he could not. The 9,500 false shares men- 
tioned above had not yet been fabricated, nor had the corporation safe 
been robbed to pay for them at the time we now speak of. 

Kamsey did not confine his operations to mere aggressive frauds 
upon his constituents ; he was a master of defense as well as offense. 
" Fitz-Jamcs's blade was sword and shield." AVhen he saw the heavy 
purchases his opponents were making, he instantly directed the treas- 
urer to make no more transfers upon the books of the company to the 
Church party. Accordingly Phelps, the treasurer, refused to make 
ofiicial note of the transfer from the town of Oneonta, although there 
was no appearance of illegality about the sale, and the commissioners 
were personally present to affirm its perfect regularity. 

To strengthen himself in his false i)Osition, he got an Albany judge 
to make an injunction forbidding the transfer. This was and could 
be nothing but a mere sham. It was in effect, though not in form, a 
suit by himself against himself, to restrain himself from performing a 
duty which he had predetermined not to do anyhow. The Church 
party not only got his Albany injunction dissolved, but fulminated 
another u])on him from New York, which commanded him to refrain 
from his refusal to make the transfer. 

But Kamsey defeated the object of this last injunction by an out- 
rage which has no parallel even in the history of his own iniquities. 
He furtively took the books of the company, carried them away, and 
hid them part of the time in a tomb in the Albany graveyard, and 
part of the time in other lonely places where they Avere beyond the 
reach of judicial process, out of the stockholders' sight or knowledge, 
and accessible only to himself and a few of his trusted accomplices. 
By this convvyanco, as Pistol would call it, of the record, he not only 
prevented all transfers to ho na fide purchasers, but put it into his 
power to fabricate, without detection, as much bogus stock as he 
might need for his own purposes. In point of fact, it was on the same 
night signalized by the disappearance of the books that he manu- 
factured the 9,500 shares Avhich he pretended to pay for with the pro- 
ceeds of the company's bonds. 

It was very plain by this time that the stockholders needed the 
help of judicial authority to save their rights from the most atrocious 
violation ; and it will be seen hereafter that judicial authority, as ad- 
ministered in New York, was very far from being effective to that end. 
However, the war of injunctions had already commenced. The next 
gun was a heavy one. It was an order obtained ex parte from Judge 
Barnard in New York city, suspending Ramsey from office, and re- 
straining the issue of any more stock unless under a resolution of the 
directors, after public notice, and upon payment of its par value. 
This order was made at the instance of David Wilber, a stockholder, a 
director, and an active supporter of the Church party. The complaint 



MISCELLANEOUS. II9 

charged Eamscy (and no doubt cliargcd liini truly) with divers misde- 
meanors, Avhich showed that he was wiiolly unlit for his trust, or in- 
deed for any other. The proceeding was justiliable in this particular 
case, not only because the law allowed it and the court awarded it, but 
because the special end it aimed at was right and i)roper. 

But it is not easy to defend on general i)rinciples the wisdom of 
the law which permits even a guilty man to bo scourged before he is 
condemned. It is true that llamscy was offered a chance of being 
heard in his own defense after he was deposed ; but this reverses the 
inllexible rule of the common law, wliicli in all cases and under all 
circumstances requires the hearing to 2)rccede the punishment. In- 
deed, the New York Code has in this respect but one example to keep 
it in countenance, and that is found in the hard ruling (according to 
Virgil's re[)ort) of the judge who presided in what may literally be 
called " the court below " : 

Gnosius hie Rhadamantlius liubot durissitna rcgna, 
Castigatquo, auditiiuo dolos, siibigit(Hio lateri. 

Sir Edward Coke, quoting these lines, says : *' The philosophic 
poet doth notably describe the damnable and damned proceedings of 
the Judge of Jlell. First he j^unisheth, and then he heareth, and 
lastly he compelleth to confess. But good judges and justices abhor 
these courses." 

Ramsey and his advisers not only learned the lesson their oppo- 
nents taught them, but they bettered the instructions. They were 
quick enough to see that, under a law which struck without hearing, 
a false accusation was just as good as a true one. Ramsey, therefore, 
did not close his eyes to sleep before he trumped up a series of charges 
against Mr. Ilerrick, the vice-president, and four of the directors, 
that they were in a conspiracy Avith the managers of Erie for a surren- 
der of their line to that corporation, which was corruptly managed by 
Gould, risk, and others, for their private ends. On this com])laint a 
Judge of the Supreme Court at Albany i)rompt]y, and without the 
least hesitation or demur, granted an injunction to restrain the vice- 
president and directors from exercising their functions. This swept 
the board clean, and left the Albany and Susquehanna Railway Com- 
pany with millions of dollars' worth of property in a most critical 
situation, and without a soul who could legally take charge of it. 

The judges of New York were as rapid in their movements as the 
old courts of Pie Poudre. Ramsey got his injunction to stop transfers 
on the 2d of August. On the 3d he was enjoined to make the trans- 
fers. On the 4th Wilber's injunction deposed him ; he was notified of 
it on the morning of the 5th, and on that same day he made his 
counter-complaint ; in the course of the night he carried off the books 



120 MISCELLANEOUS. 

and fabricated the false stock ; on the next morning lie served his 
order uj)on the vice-president, and the corporation was broken to frag- 
ments. 

Thus far Ramsey was the winner. With the records of the corpora- 
tion in his exclusive possession, a treasurer at his elbow to whom his 
word was law, and numerous active confederates to do his bidding, he 
was master of the situation. To be sure, his enemies had deposed him, 
but he had also deposed tliem, and put their property in peril of ex- 
treme and ruinous loss — "which, if not victory, was at least revenge." 

Things had come to a crisis in the affairs of the company where the 
stockholders could do but one thing, and that was to have receivers ap- 
pointed who would keep the road running until its regular management 
could somehow be restored. The Church party, who owned by far the 
larger part of the stock, and who had paid not only fair but high prices 
for it, could not look upon their condition with calm indifference. 
They Avere constrained to act promptly. Accordingly, on the eveniiig 
of the Gtli of August, they applied to Judge Barnard, and got him to 
appoint two receivers, Charles Courter and James Fisk, Jr. The ap- 
pointment of Mr. risk provoked a torrent of vituperation. It has been 
considered a sufficient reason for charging the judge, the counsel, and 
all others concerned in it, with gross corruption. Without stopping 
to inquire whether Mr. Fisk Avas or was not as proper a person as any 
other for such a trust, we note two facts which should stop this out- 
burst of calumnious accusation. In the first place, the authority given 
the receivers was Joint, and Fisk could do no act, good, bad, or indif- 
ferent, without the approbation of his colleague, who was and is a 
gentleman not only of very large estate, but of most unblemished 
character ; and, secondly, the appointment was made with the consent, 
expressed in writing, of seven directors representing an undoubted 
majority of the stockholders. The order was privately signed by the 
judge, after the manner of New York judges ; but if this was law and 
custom in all cases, as it undoubtedly was, why should there be an out- 
cry about the observance of it on this occasion ? It becomes especially 
absurd when we find that another judge, acting in Eamsey's interest 
and at his request, was doing the very same thing at Albany on the 
same night and at about the same hour ! 

Yes, Eamsey had countermined the Church party again. Before 
Messrs. Courter and Fisk could reach Albany with Judge Barnard's 
warrant to take possession of the trust. Judge Peckham had privately, 
in the office of his son, invested a Mr. Pruyn with the same powers, 
and Mr. Pruyn had possession of the company's office and the road at 
that end of it. Messrs. Courter and Fisk, by their agents, got hold of 
the Binghamton end, and that was all they could do. This brought 
the parties to close quarters. The conflict between opposing receivers, 
holding their authority from courts of equal jurisdiction, and acting 



MISCELLANEO US. 121 

under irreconcilable orders which each party claimed to be of superior 
obligation, presented in a practical shape the ancient problem of an 
immovable body encountered by an irresistible force. Judge Peck- 
ham's receiver determined to hold fast, and the magistrate who made 
him did not suffer him to languish for lack of helpful process and rc- 
enforcing decrees. Judge Barnard, not to be behind his brother Peck- 
ham in pluck and energy, provided Ms receivers with writs of assist- 
ance and all the other weapons they asked for out of his judicial 
arsenal. Everybody was in contempt, and everybody was in default. 
The sheriff, whose duty it was to execute the conflicting orders, was 
utterly bewildered. He was required to call out the fosse comitatus 
to support each party against the other. He could not perform the 
functions of his office unless he would " divide himself and go to buf- 
fets with the pieces." A great battle was impending, and as the sheriif 
with his power of the county was to be on both sides, the result could 
not possibly be foretold. Hostile bodies of workmen were drawn 
out, armed with pistols and bludgeons, and locomotives got up steam 
and ran into one another. The scene would be an odd one in any 
civilized country outside of the State where it occurred ; for all j^arties 
were fighting under the ensign of public authority. It was judicial 
power subverting order and breaking the peace ; it was law on a ramj)- 
age ; it was justice bedeviled ; in one word, it was the New York Code 
in full operation. 

The Governor, it seems, had been watching the current of this 
heady fight ; he thought it might be his duty to interpose the militia 
between the combatants, and conquer a peace by making a war upon 
both of them. The opposing receivers, to " stop the effusion of 
blood," were persuaded to unite in a petition to the Governor to take 
possession of the road and operate it by a superintendent of his own 
choosing. The Governor thereupon appointed Colonel Banks, stipu- 
lating that his custody should end as soon as the rights of the contest- 
ing parties could be ascertained and settled. This peaceable adjust- 
ment was effected by the exertions of Mr. D. Dudley Field, who, though 
his partners had previously been concerned for the Church party, now 
first appeared as an active participant in the controversy. His wisdom, 
good temper, and sound sense discerned what was not seen by others — 
the incapacity of the judicial department to manage such a business, 
and the necessity of putting it under executive arbitration. 

The iiroperty of the company being now safe from destruction, the 
stockholders had nothing to do but watch and pray that Eamsey might 
not by any stratagem defeat their right to choose an honest board .if 
directors. The election-day came round in the fullness of time ; the 
majority proceeded to business and cast their votes ; but Eamsey pro- 
nounced their organization illegal, retired with his confederates to an 
adjoining room, opened a pool, and declared himself and others in his 



122 MISCELLANEOUS. 

interest duly elected. lie did not vote the 3,000 shares sold to Groes- 
bcck, nor the 9^,500 fabricated on the night of the 5th of August ; but 
he and his friends held some undisputed shares which they did vote at 
their own poll, and by ignoring the majority he was able to count 
himself in without difficulty. Both boards claimed to be duly elected, 
and they organized by choosing Messrs. Church and Eamsey their re- 
spective presidents. Both demanded the surrender of the corporate 
franchises into their lands, but the Governor did not think himself 
authorized to decide between them. 

Two or three circumstances connected with the election, though 
unimportant in themselves, require to be noticed here, because they 
have been much commented on elsewhere. 

The fraudulent asportation of the records was accomplished on the 
5tli of August. The election was on the 7th of September. On the 
night of the Gth, Phelps and a son of Ramsey secretly carried the books 
to the rear of the building and hoisted them up to the window of the 
treasurer's room in a basket, with a rope tied to its handle. Nobody 
but Ramsey and his little band of confederates knew of this midnight 
restitution of the books until they were produced at the stockholders' 
meeting next day. In the mean time the Church party, seeing the 
election approach and feeling the necessity of having the ledgers and 
stock-lists for inspection, and having failed in various efforts to get 
even a sight of them, resolved upon taking a legal remedy. They 
brought suit in the Supreme Court for the city of New York against 
Ramsey, Phelps, Pruyn, and Smith, charging them with carrying away 
tlie books and concealing them from the stockholders. By the Code 
the defendants in such a case are liable to personal arrest, and bail 
was accordingly demanded in $25,000. The process was issued on the 
Gth of September, and the parties were arrested (and bail taken im- 
mediately) on the morning of the 7th (the election-day), the sheriff 
having chosen his own time to execute the process. We have entirely 
failed to comprehend what the meaning of the men can be who vilify 
Messrs. Field and Shearman and their clients for bringing this suit. 
Of all the measures taken by cither of the parties against the other, 
throughout the contest, this seems to us the most unquestionably just 
and proper. It is mere nonsense to call it harsh or oppressive. It 
was meant to redress a most atrocious wrong, for which the perpetra- 
tors, by the law of any other Christian country, would have been con- 
demned as criminals to heavy fines and long imprisonment, without 
bail or mainprise. Even the legislation of New York does not over- 
look the necessity of punishing an outrage like this, just as it might 
have been punished in a civil action before reform was thought of. It 
is some honor to the Code that, for once, it spoke out in the well-meas- 
ured and majestic tones of the common law. 

The presence of what has been called "a congregation of roughs" 



MISCELLANEOUS. 123 

in the room was subsequently talked of very freely. It is doubtless 
true that on both sides of the apartment there crowded a considerable 
number of men not clothed in purple and fine linen, nor having mucli 
the appearance of heavy capitalists. It happened thus : The in- 
spectors under whose auspices llamsey designed to hold the election 
were disqualified for their office by reason of not being stockholders. 
To restrain them from acting, the Church party, of course, betook 
themselves to the everlasting injunction, and on the morning of the 
election got out one of those convenient engines to neutralize the ille- 
gal authority which Eamsey wished to bestow and probably to abuse. 
This would leave the inspectors to be chosen viva voce, and the im- 
pressiveness of assent or dissent might depend on the number of 
throats and strength of lungs employed in cxjoressing it. Probably 
both parties anticipated this or something like it. It is certain that 
both improvised a force of courageous and muscular gentlemen, and, 
by putting a proxy in the hands of each one, they gave them all a 
technical right to be present and to swell the volume of the ayes and 
noes with their "most sweet voices." But there was no actual disor- 
der, no intimidation, no violence or threat of violence. 

Another thing : Groesbeck had been enjoined, and his 2,400 fraud- 
ulent shares had been put into the hands of a receiver to be held, so 
that Groesbeck could not vote them. The Eamsey men, on the morn- 
ing of the election, undertook to trump this injunction by getting 
from Judge Clute, of tlie Albany County Court, another injunction 
which forbade the inspectors to receive any votes of the Church imrty 
unless the holders of the fraudulent stock should first vote on that. 
Fuller, the receiver, happened to be present. No doubt he Avas puz- 
zled. He held the stock, and, by legal intendment. Judge Clutc's order 
applied to him if it applied to anybody. He could not give it back to 
Groesbeck without defeating the purpose for which he held it and ex- 
posing himself to the danger of being laid by the heels. If he refused 
to vote it, or let it be voted, a large majority of bona fde stockholders, 
with rights to vote otherwise undisjiuted, would be totally disfran- 
chised. He took the advice of counsel and untied the knot by liter- 
ally obeying the Clute injunction and voting himself. Eamsey and his 
men were fairly infuriated by the failure of their shallow and imjiu- 
dent trick. He and his counsel and his judge had made the blunder 
of supposing that Groesbeck was in law the holder, and they got an 
injunction which they fancied would reinstate his fraudulent posses- 
sion or else defeat the clear right of all their opponents. But they 
got one which, in fact and in law, defeated themselves. Mr. Eamsey 
is not the first engineer that was hoist by his own petard. 

The Governor naturally desired to get rid of the perplexing and 
anomalous trust imposed upon him by the agreement of the parties. 
Perceiving that the election was an abortion, and seeing that the judi- 
9 



1 24: MISCELLANEO US. 

ciary had completely failed to settle anything in any of the numerous 
suits pending between the parties, he directed the Attorney-General 
to commence another in the name of the people against hoth jmrties 
together. This was not a quo warranto, nor a mandamus, nor a hill 
in equity, nor an action in case or trespass; these terms belong to 
"the jargon of the common law," and the Code does not condescend 
even to pronounce them. It was a proceeding against the corporation 
itself which the Governor had under his care, and against forty-nine 
individuals, of two fierce parties, contending against one another for 
its management. The complaint does not c])arge them with any of- 
fense against the plaintiff, but with mutual injuries committed by one 
set of the defendants against the others ; and these wrongs consisted 
mainly in bringing suits for what they respectively averred to be their 
rights, a course of conduct which the Governor (truly enough, per- 
haps) thought would result in no good to anybody. 

Of course the defendants could not make up an issue either of law 
or fact between themselves, no matter how they might sever in their 
answers to the plaintiff. In the dark days of Kent and Livingston 
and Spencer, it was thought morally impossible to introduce evidence 
until there was an issue to which it might have some kind of applica- 
tion. But here the defendants were called in and permitted to fight 
one another to their hearts' content without pleadings or proofs, and 
the judge was wholly emancipated from that barbarous bondage which 
in past times would have compelled him to pronounce his decree secun- 
dum allegata et probata. The proceeding seemed sufficiently free from 
"technicalities." It was apparently not fashioned, like the injunc- 
tion, on the principle of the bastinado, but rather modeled after that 
other form of Turkish justice in which the Sultan, Avhen he finds a 
cause too difficult to be otherwise dealt Avith, sews up the stubborn 
disputants in the same sack and casts them into the Bosphorus to go 
down the tide together — which they generally do with a most edifying 
disregard for the rules of navigation. 

This curious cause came on for hearing (which, in the nomencla- 
ture of the Code, is called a trial) at Rochester before Judge E, Darwin 
Smith, without a jury. It was argued by Mr. D. Dudley Field for 
one portion of the defendants and by Mr. Henry Smitli for the other, 
the plaintiff apparently taking no part whatever ; and it was decided 
in December, 1809. Probably nothing more severe has been said, or 
could be conceived, of Mr. Justice Smith's judgment than the lauda- 
tory words bestowed upon it by Mr. Adams. We quote them : 

" There are cases whera a judge upon the bench is called upon to 
vindicate in no doubtful way the purity as well as the majesty of the 
law ; cases in which the parties before the court should be made to 
feel that they are not equal, that fraud is fraud even in a court of law 
— that caviling and technicalities and special pleading can not blind 



MISCELLANEO US. 1 25 

the clear eye of equity. It is possible that even a judicial tone may 
be overdone or be out of place. There are occasions when tlie scales 
of justice become almost an incumbrance, and both hands clutch at 
the sword alone. Whether tlie magistrate upon whom the decision of 
this cause devolved was right in holding this to be such an occasion is 
not now to be discussed ; it is enough to say that his decision sustained 
at every point the Eamsey board, and crushed in succession all the 
schemes of the Erie ring. The opinion was most noticeable in that it 
approached the inquiry in a large spirit. Its conclusion was not made 
to turn on the question of a second of time, or a rigid adherence to the 
letter of the law, or any other technicality of the pettifogger ; it swept 
all tliese aside, and spoke firmly and cleaz'ly to the question of fraud 
and fraudulent conspiracy. All the elaborate comparisons of watches, 
and noting of fractional parts of a minute, which marked the organiza- 
tion of the Erie meeting, were treated with contempt, but the meeting 
itself was pronounced to be organized in pursuance of a previous con- 
spiracy, and the election held by it was 'irregular, fraudulent, and 
void.' The scandals of the law — the strange processes, injunctions, 
orders, and conflicts of jurisdiction — were disposed of with the same 
grasp, whenever they came in the path of the decision. The appoint- 
ment of Fuller as receiver was declared to have been made in a 'suit 
instituted for a fraudulent purpose,' and it was pronounced in such 
'clear conflict with the law and settled practice of the court' as to be 
explicable only on a supposition that the order was 'granted incau- 
tiously, and u})on some mistaken oral representation or statement of 
the facts of the case.' The order removing the regular inspectors of 
election was 'improvidcntly granted' and was 'entirely void'; and 
the keeping it back by counsel, and serving it only at the moment of 
the election, was 'an obvious and designed surprise on the great body 
of stockholders.' The suit under which the Barnard order of arrest 
was issued against Kamsey and Phelps was instituted Avithout right; 
the order of arrest was unauthorized ; the order to hold to bail Avas 
'most extraordinary and exorbitant,' and procured 'in aid of fraudu- 
lent purposes.' The injunction for))idding Kamsey to act as president 
of the company was 'entirely void.' The 3,000 shares of forfeited 
stock reissued to Mr. Groesbeck were pronounced 'valid stock,' and 
numerous precedents were cited in which the principle had been sus- 
tained. Even the injudicious subscription for the 9,500 new shares of 
stock by Ramsey and his friends, on which they had not attempted to 
vote at the election, was declared in point of law regular, valid, and 
binding. Upon the facts of the case the decision was equally out- 
spoken ; it was fraud and conspiracy everywhere. 'The importation 
and crowding into a small room' of a large number of 'rude, rough, 
and dangerous persons,' and furnishing them with proxies that they 
might participate in the proceedings of the meeting, ' was a gross per- 
version and abuse of the right to vote by proxy, and a clear infringe- 
ment of the rights of stockholders, tending, if such proceedings are 
countenanced by the courts, to convert corporation meetings into 
places of disorder, lawlessness, and riot.' Finally, costs were decreed 
to the Ramsey Board of Directors, and a reference was made to Sam- 
uel L. Selden, late a Judge of the Court of Appeals, to ascertain and 
report a proper extra allowance in the case, and to which of the de- 
fendants it was to be paid." 



126 MISCELLANEOUS. 

It is not likely that Judge Smith will complain of this notice of his 
judicial merits, from the pen of a rapturous admirer. And yet, when 
we consider their import, how damning are these words of praise ! 
"There are occasions," says Mr. Adams, "when the scales of justice 
become almost an incumbrance, and both hands clutch the sword 
alone." So there are indeed. Jeffreys thouglit so when into the west 
of England he carried terror and death among the unhappy peasantry 
who had followed Monmouth, and came back to his master red with 
the gore of the Bloody Assizes. Ananias the high-priest approached 
the inquiry in a large spirit of disregard for what Mr. Adams calls 
technicalities when he commanded them that stood by Paul to smite 
him on the mouth ; but we must not forget the indignant rebuke ad- 
ministered by the great apostle of the Gentiles: "God shall smite 
thee, thou whited wall ; for sittest thou to judge me according to the 
law, and commandest me to be smitten contrary to the law ?" "When 
Saunders was asked to pronounce an impartial judgment in the quo 
warranto against the corporation of London, he thought a judicial 
tone might be overdone or out of place. A military commission, or- 
ganized to please the powerful and false accuser by hanging the weak 
and innocent victim of his malice, will admire the virtue of a civil 
magistrate who 77iade the parties feel that they ivere not equal. "Judge 
Smith," says his eulogist, "did not make his decision turn on the let- 
ter of the law, or on any other technicality of the pettifogger." True 
enough ; but is it not just possible that even a pettifogger, whose 
worst vice is adherence to the law, may be a safer sort of person in the 
land than one whose great glory is to trample it under foot ? The 
fame of judges who throw away the scales, clutch at the sword alone, 
and smite contrary to the law, is not a possession generally coveted by 
men in ermine ; but Mr. Adams's compliments apply not less to Jef- 
freys and Scroggs and Saunders, to Herod and Ananias, to Fouquier 
Tinville and Hunter and Holt, than to the man whom he describes as 
a judicial gladiator, fighting against legal justice on the side of Eam- 
sey. 

Mr. Adams's summary of Judge Smith's decision could have been 
much abridged if he had stated simply that this remarkable arbiter 
of men's rights pronounced everything that Eamsey had done to be 
valid and admirable, and everything done by those opposed to him 
dishonest, unlawful, and worthy of unmitigated reprobation. So far, 
indeed, did the largeness of his spirit carry him, that, to borrow the 
language of Mr. Adams, "even the injudicious subscription for the 
9,500 shares of stock by Ramsey and his friends, on which they had 
not attempted to vote at the election, was declared in point of law 
regular, valid, and binding." There is a significance in the word 
'^ even" at the beginning of this sentence which implies very strongly 
that Mr. Adams had not expected so much as this from anybody on 



MISCELLANEO US. 



127 



the bench. Ramsey, reckless as he was, feared to tread where the 
headlong Smith rushed in. He was bold enough to fabricate the 
fraudulent stock, but he did not vote it, as he might have done had 
he dreamed that there was on the face of the earth a judge prepared 
to pronounce his fraud "regular, valid, and binding." It is not 
strange, observing the temper of Judge Smith's opinion, that, on the 
morning after it was published, he was secretly closeted with Eamsey's 
attorneys, and engaged, as he himself stated, " in looking over the 
findings of fact and comparing and adjusting them with his opinion." 
A single circumstance will show that this labor was not in vain. In 
the body of the opinion the judge declared, referring to Ramsey's 
secret issue of stock : "The subscription for the 9,500 shares by Hen- 
dricks, Hunt, and others, I think made them stockholders upon such 
stock of said corporation. They paid the ten per cent upon it, and 
can not avoid the payment of the balance due upon such stihscripiion. 
The company has had the ten per cent, and tlic subscription was 
made in the regular subscription-book in the hands of the officers of 
the company, and created an absolute legal obligation to take the 
stock and pat for the same." And in framing his conclusions of law, 
there was one inserted, as the original paper on file in his court shows, 
to correspond with this paragraph of his opinion : " That the 9,500 
shares of stock subscribed for in the books of said company, by Jared 
Goodyear, Robert H. Pruyn, John Eddy, William A. Rice, Eliakim 
R Ford, John Cook, Joseph H. Ramsey, James Hendricks, Minard 
Harder, and Harvey Hunt, whereon ten per cent was paid in money 
on the 5th day of August, 18G9, thereupon became, and were, and 
still are, lawful and valid shares of the capital stock of said company." 
It is needless to say that his Honor Judge Smith, when he wrote 
this "conclusion," and the passage in his opinion with which it was 
made to correspond, meant to do a very kind thing for the men of 
Eamsey's faction. Indeed, as we have seen, he was out-Ramseying 
Ramsey. The stock which he had pronounced "valid" was never in- 
tended to be taken or kept ; the ten per cent paid on it had actually 
been "■ lifted " out of the treasury of the company ; not a penny had 
been advanced by the nominal holders, and it v/as expressly under- 
stood that they were not to concern themselves about any future pay- 
ments. Moreover, the stock had been created merely to serve an 
emergency which was now past. Nothing, therefore, could have been 
of more startling or disastrous import to Ramsey and his confederates 
than a judicial conclusion of law to the effect that they actually owned 
the shares for which they had subscribed, and were bound to pay the 
balance due upon them into the treasury of the company, to wit, the 
sum of $855,000. 

No wonder that when Ramsey's attorneys were employed " in look- 
ing over the findings of fact, and comparing and adjusting them with 



128 MISCELLANEOUS. 

the opinion," they miidc haste to correct this shocking blunder, and 
to rid their clients of the liability it would impose on them. It was 
too late to tinker the opinion, which was already in print, but the 
damaging " conclusion" was stricken out, and the judge, by this last 
and efficient bit of service, added nearly a million dollars' worth of 
thanks to the heavy debt of gratitude which the Eamsey people owed 
him already. 

Everything being decided in favor of Eamsey, the judgment, of 
course, included a decree that he and his board were lawfully elected, 
although they had received a very small minority of the votes. The 
scales being discarded, the majority weighed no more than the minor- 
ity.* An order was accordingly made that Ramsey and his board " be 
immediately let into possession." The first thing they did was to put 
the property forever out of the owners' reach by a perpetual lease to 
the Hudson and Delaware Canal Company. This was not all or nearly 
all. Within one month after Eamsey and his board got possession, 
they voted to him, at his own request, and on his own dictation, two 
sums of money, amounting in the aggregate to 102,803.35, and 1,330 
shares of stock, worth at jiar $133,000. If this was not a mere gra- 
tuity — a naked robbery of the stockholders — it was based on some 
transaction grossly corrupt ; for Eamsey refused to explain the ground 
of it, and the board has ever since steadily resisted all efforts to inves- 
tigate it. 

This cause it took but little time to dispose of. In two months 
from the day when the stockholders were called into court — '' two lit- 
tle months or ere those shoes were old " — they were turned out, de- 
spoiled of their property, and branded as fraudulent conspirators for 
trying to hold it. We would suppose that this could not be a very 
expensive operation. On a road at once so short and so rough, the 
tolls should not be heavy. The justice which the Church party got 
in Judge Smith's court ought to bo a cheap article, since it has no 
other quality to make it desirable. But costs were awarded — extra 

* The statements both of Mr. Adams and Mr. Curtis are obscure concerning the votes 
given by the respective parties at the election. The important and leading fact, however, 
is well established, and not denied, that the Church party owned, and held, and voted 
nearly two thirds of the bona fide stock; and the Grocsbcck stock was voted for them 
besides under an injunction of their opponents. Mr. Adams informs us that Ramsey 
did not attempt to vote any part of the 9,500 shares. If he voted only those bona fide 
shares which he held, and had a right to vote, his own return must have shown him 
in a very meager minority. But the court declared him elected. Whether this was done 
by throwing out of the count all the votes of the Church party, or by throwing out onhj 
oioufjh to put them in a minority, or by adding to Ramsey's votes others which were not 
cast at all by cither party, or by transferring votes actualli/ cast for Church to Ramsey, 
for whom they wore not cast, we have no information. All these modes of electing a 
defeated candidate are adopted when occasion requires by Philadelphia return judges, and 
sometimes they are very ingeniously compounded together. 



MISCELLANEOUS. 129 

costs — not in favor of the plaintiffs, nor against the defendants in a 
body, but against some of the defendants in favor of other some. An 
ex-Judge of the Court of Appeals was appointed assessor to aid in 
fixing the amount, and it was fixed at ninety-two thousand dollars ! 
An economical nation might carry on a small war without spending 
more than it costs a private citizen to defend his plainest right in a 
Kochester court. 

The Church party appealed to the General Term, where all the 
rulings of Judge Smith were reversed, through and through, except 
upon the validity of tlie election. That was affirmed, on the ground 
that he was competent to pass upon it ; that is to say, he had legal 
authority which made his determination upon the point conclusive. 
How he got power to decide that or anything else between ])artics who 
were on the same side, and not at issue, we do not pretend to conject- 
ure. But the Code especially delights in jurisdictional absurdities. 
This, however, has gone up to the Court of Appeals, ct adhuc sub 
judice lis est. 

If a dispute like this had occurred in a country where the principles 
and the rules of the common law prevail,* it would have been deter- 
mined easily and satisfactorily, without parade or trouble. An action at 
law would have brought the defaulting agent of the corporation to 
justice very soon ; or a bill in equity would have called everybody in- 
terested into court at once, given them all a full hearing, and made a 
clean settlement of the whole matter. But here was a petty offender, 
strong only in the weakness of the law, who was able to defy justice 
and to triumph over it. The men whom he had wronged took after 
him with the Code : twenty-eight injunctions wore exploded from dif- 
ferent and distant parts of tiie State ; the attack and the defense raised 
such an uproar that the framework of society was in danger of being 
broken ; actual violence was commenced and extensive bloodslied was 
imminent ; yet he retained his possession of all he took, and took as 
much more as he wanted. To drive this nibbling rat from the cor- 
poration cupboard, they gave chase with force and noise and numbers 
enough to hunt down a Bengal tiger, and the vermin was not dislodged 
after all. The Code is not a '' terror to evil-doers," nor ''a praise unto 
them that do well." 

It is a rule of epic poetry that the story stops when the hero has 
reached the zenith of his fortunes. As the "Iliad" closes when the 
wrath of Achilles is appeased by dragging the body of Hector around 
the walls of Troy, and as the " iEncid" concludes abruptly when the 
death of Turnus makes iEneas master of Italy, so Mr. Adams closes 

* It can hardly be worth wliilc to say that by common law we do not mean merely 
the ancient laws and customs of England, but those rules and principles which the first 
colonists transplanted here for the protection of life, liberty, and property, and which 
have since been modified from time to time as experience has proved to be necessary. 



130 MISCELLANEO US. 

his account of Ramsey's high career at the point of time when his cheat 
upon the owners of the Albany and Susquehanna Raih'oad was com- 
pletely successful. But Mr. Curtis, in his matter-of-fact production, 
carried the narrative a little further on. 

Eamsey, being elated with his conquest of the Albany and Susque- 
hanna, determined to invade the Erie, in hopes of subjugating that 
also. He was not a creditor nor a stockholder ; but to give him nomi- 
nal status, Groesbeck — the same Groesbeck — bought for him thirteen 
shares of stock and six bonds. With these he went to Delhi, the most 
secluded county town in the State, situated twenty miles from any rail- 
way line, and accessible only by mountain-roads. There he fouud 
Judge Murray, one of the thirty-three, and to him he complained that 
he was in danger of losing the money he had invested in these bonds and 
this stock, by reason of certain mismanagement of its officers and direct- 
ors, the recital of which covered three hundred and forty folios. On 
this complaint the judge gave him, not merely an injunction, but a 
great quantity of injunctions ; suspended a majority of the directors, 
appointed a receiver, restrained the suspended directors from making 
defense in this or any other suit involving their official conduct, com- 
manded the unsuspended directors to see that the company was 
promptly represented by such counsel as they should select, ordered 
that no creditor but Eamsey should institute any suit to collect or se- 
cure his debt, and directed the defendants, under penalty of contempt, 
to bring no cross-suit which might embarrass the plaintiff in his prose- 
cution of this one. Under these orders Eamsey managed to have the 
defendants 7?romjt?% represented by a family connection of his own. 
When this destructive missile burst on the men of Erie at their New 
York office, it no doubt produced some terror. They immediately 
sought the ablest counsel they could find, and directed Messrs. Field 
and Shearman to adopt energetic measures of defense. But those 
gentlemen were informed that they could not appear, their clients 
being already represented by an attorney who had been selected for 
them, whom they did not know, and whose name even they were not 
permitted to learn. Nor could they discover who was the person ap- 
pointed to take charge of their client's property, and exercise over it the 
unlimited control of a receiver. The alarm of the parties was greatly 
increased when they learned that their rights were to be in the keep- 
ing of David Groesbeck, the man who had aided Eamsey in all his pre- 
vious frauds, and whose sense of moral and legal obligation may be 
learned from a fact stated by Mr. Adams ; namely, that he defended 
Eamsey's fabrication of fraudulent stock and his approjiriation of the 
Albany and Susquehanna Company's bonds, and "declared that under 
the same circumstances and fighting the same men he himself would 
have gone as far, and further, too, if necessary." 

Here was such a case as no community living under any kind of a 



MISCELLANEOUS, 131 

code had ever seen before. All the property of a corporation worth 
sixty million dollars, and employing in its service the daily labor 
of twenty-five thousand hands, was snatched from the owners in the 
twinkling of an eye by an order made behind their backs, and all their 
rights and the rights of their employes and creditors Avere put at the 
mercy of a man who, speaking of these very owners, had openly 
avowed that in dealing with them he would be restrained by no moral 
principle ; that fighting the same men he would betray the most sacred 
trust, clandestinely appropriate their property, make false papers to 
cheat them, and injure them otherwise by going still further if neces- 
sary. All these perilous notions of right and wrong were fully shared 
by the plaintiff, who had secured an attorney for the defense, and so 
made himself dominus litis on both sides. Ex parte injunctions had 
of ten before tliis torn men's property out of their possession without a 
hearing, but the Rhadamanthian justice of a subsequent trial was 
always conceded. Here the right to make even an ex post facto de- 
fense was taken out of their hands. 

We see no reason to suppose that Judge Murray was not both a 
competent and an honest man. He acted according to the Code, 
which never refuses to do any amount of wrong if it can be put into 
the form of an injunction. But the Code itself could not endure such 
a pressure as this. Messrs. Field and Shearman, after much difficulty 
and delay, got on the track of the unknown person who was represent- 
ing their clients, wrung the case out of his hands, and gained a posi- 
tion where the plaintiff was compelled to face them with his proofs. 
He broke down utterly, and his complaint was dismissed. Afterward 
he and his backers raised a clamor that he had been forced to trial 
with his hands tied. In truth, his hands were as loose as need' be, but 
they were not clean enough to be shown. 

The general question of ethics, which Mr. Adams raises, would 
tempt us to an extended discussion if we had unlimited space for it. 
As it is, we can not let the subject pass without saying that Brougham 
is not a leader fit to be followed, even xw. a matter so simple as every 
moral question must necessarily be to a man who believes in the New 
Testament. Brougham was nothing if not sensational, and before such 
an audience as he addressed in the Queen's case the impulse to be ex- 
travagant was more than he could resist. We prefer the higher and 
more ancient authority of Roger L'Estrange, whose ''Character of an 
Honest Lawyer," written in the English of the seventeenth century, 
is at once accurate and epigrammatic. Supposing a candid seeker for 
truth to be still unsatisfied, let him read Sharswood's admirable book 
entitled '' Legal Ethics," supplemented, if need be, with Redfield's 
article in the July number of the "American Law Register." The 
lego-theological side of the subject is presented by Judge Agnew, in 
his address to a Western college on the ''Philosophy and Poetry of the 



132 MISCELLANEOUS. 

Law " ; and the theologico-legal aspect is displayed by Sydney Smith, 
in his sermon on " The Lawyer that tempted Christ." That member 
of the profession who receives tlie spirit of these teachings into his 
heart, and acts accordingly, will be worthy of his high vocation while 
he lives, and to use the words of old Roger, " When Death calls him 
to the Bar of Heaven by a Habeas Corpus cum Causa he will find his 
Judge his Advocate, nonsuit the Devil, obtain a Liberate from all his 
infirmities, and continue still one of the Long Robe in Glory." 

Disdaining the advantage of Brougham's eccentric theory, and try- 
ing Messrs. Field and Shearman by the severer standard of the better 
men whose works we have cited, what have they done to merit re- 
proach ? or wherein have they come short of their duty in all this diflB- 
cult business? The only semblance of a specific accusation is, not 
that they took up an unjust cause, but that they were retained by a 
bad client. Mr. Adams thinks it very sensible and proper to make a 
grave exhibition of this charge, and to circulate it far and wide over 
the world ; therefore (and only therefore) we are not permitted to say 
in plain terms that it is most absurd and wicked. 

If no counselor can be concerned for Fisk and Gould in any case 
whatever without becoming infamous, it follows that no court can, 
without incurring a similar penalty, extend the protection of the law 
to their plainest rights. They are mere outlaws ; they may be slan- 
dered, swindled, robbed with impunity, " and it shall come to pass 
that whosoever findeth them shall slay them." * If this be consistent 
with the genius of our institutions, we have misapprehended those 
provisions of tlie fundamental law Avhich declare that the courts are 
open to all men, and that all shall have a fair trial with counsel to 
assist them in getting justice. 

This style of attack upon Mr. Field looks to us like a very unmis- 
takable tribute to his good fame. The character of a lawyer must be 
more than commonly spotless when his enemies have no material for 
defaming him except what they get by raking about among the faults 
and follies of his clients. But that society is a very unsafe one to live 
in whose sense of justice will permit one man to be hunted down 
merely because the wolf's head has been placed on another. The repu- 
tation of lawyers — which is the life of their lives — will be extremely 
precarious, however virtuous their own acts may have been, if the con- 
centrated odium of all tlieir clients' sins can be cast upon themselves. 

The Church party — that is to say, the proprietors of the Albany 
and Susquehanna Railroad — had a cause as just, legal, and fair as any 
court ever saw. They had been remorsely plundered by a gang of 
reckless knaves, who made no secret of their intentions to repeat the 
robbery in the same as well as in other forms. Messrs. Field and 

* This was written and in the hands of the printers before the assassination of 
Colonel risk.— Ed. 



MISCELLANEOUS. 133 

Shearman accepted the retainer of these injured parties, and gave them 
the promise of such redress and protection as they could legally obtain 
for them. Now it is charged that this engagement to procure justice 
by legal means, in a perfectly uin-ight case, was a prostitution by 
Messrs. Field and Shearman of their talents and influence, because one 
or two of the parties thus injured are supposed to have been previous- 
ly engaged in other transactions in which they were themselves to 
blame. Whether this be true or false, it furnished no reason to Messrs. 
Field and Shearman for rejecting the case on moral grounds. If the 
cause, though just, was likely to become unpopular because Fisk and 
Gould were in it, that was an additional reason for taking it. Mere 
public clamor will not deter any honorable man from tlie jjcrformance 
of a duty ; on the contrary, he is excited to higher efforts when "the 
heathen rage and the people imagine a vain thing." 

That they beliaved with scrupulous uprightness in the progress of 
the cause, and used no unfair means to reach the ends of justice, is a 
proposition which will not be denied unless by some who think that it 
is wrong in all circumstances to take out an ex 'parte injunction. Cer- 
tainly the law which allows this mode of proceeding is entitled to no 
commendation. But while it is in full force it may be used for a 
proper jiurpose with a safe conscience. Every man is justified in de- 
fending the right against the wrong with such weapons as the law puts 
into his hands. Even L'Estrange's "Honest Lawyer," rigid as he is, 
" uses the nice snajiperadoes of practice, in a defensive way, to coun- 
termine the plots of knavery, though he had rather be dumb than 
suffer his tongue to pimp for injustice, or club his parts to bolster up 
a cheat with the legerdemain of law-craft." 

But then it may be said that Mr. Field, being the author of the 
Code, is responsible for the law itself, and for the mischief it produces 
in other hands as well as his own. The fact may be assumed too has- 
tily. He is not the author, or supporter, or approver of that system 
which we have called tlie Code in this paper. Whenever we have said 
"Code," we meant the New York system of jurisprudence, a very 
small part of which was furnished by him. A piece of his work was 
taken and joined on the half-demolished ruins of the common law, 
and afterward there were added to both the outrageous j)rovisions 
which have made such confusion and conflict in the jurisdiction of the 
courts. That he meant well by what he did has never, we believe, 
been doubted. If he erred, his error was shared by thousands of the 
best men and truest philanthropists in Europe and America ; and the 
faith of many in "law reform," like that of Joanna Southcote's disci- 
ples in their " Shiloh," is robust enough to live on under all the dis- 
couragement of past failures. Let us hope that the pure benevolence 
of their efforts will meet its reward in the higher success of a far bet- 
ter reform, which may restore us to the golden age of the law. 



134: MISCELLANEOUS. 

The Code actually prepared by Mr. Field and the commission 
which he headed has not had a trial in New York. When a portion 
of it was torn from its context and united with a mutilated part of 
the common law, the symmetry of both Avas destroyed, and confu- 
sion became unavoidable. The Legislature, when they abolished the 
old forms of pleading, rejected the new forms with which Mr. Field 
proposed to supply their place ; these latter were scientific and logical, 
and would have saved much of the evil which has happened for want 
of them. It was the experiment, which has always failed, of putting 
new wine into old bottles. In some of the Western States they have 
tried the Code pure and simple, and very wise men are animated with 
the hope of its complete success. Mr. Field has no lack of adherents 
at home and abroad, who believe in the Code apparently on the prin- 
ciple of that Roman citizen who said he would rather be wrong with 
Cato than right with all the rest of the world. No doubt Mr. Field is 
a better man than Cato ever was ; but we are not "ravished with the 
whistling of a name," and therefore we say to all Americans who are 
still permitted to enjoy the blessing of the common law, that they 
should watch over that inheritance faithfully, and show no quarter to 
codifiers. Let them lay to their hearts the solemn warning of the 
Hebrew prophet : ''Walk in the old paths; stand upon the ancient 
ways ; observe them well, and be ye not given unto change." 

J. S. Black. 



THE CHAEACTER OF MR. SEWARD.— REPLY TO C. F. 

ADAMS, Se. 

To the Hon. Charles Francis Adams : 

Amoxg a certain class of the American people a desire prevails 
that your " Memorial Address " on the late William H. Seward should 
receive a fuller examination than Mr. Welles has given it. His papers 
are very strong and clear ; but there are certain fundamental questions 
which he does not touch, and which the friends of constitutional gov- 
ernment can not allow to be " washed in Lethe and forgotten." In 
my attempt to supply some of his omissions, I address you directly, 
because in that form I can best express my great respect for you while 
I try to expose the errors which I think I have detected in your ad- 
dress. 

Your reputation for stainless integrity, for great talents, and for 
liberal principles, gives your words almost the authority of an oracle. 
There is, perhaps, no man in this country whose naked assertion would 
go further than yours, at home or abroad. If you have pronounced 
an erroneous judgment on an important matter, it should be subjected 
to a free revision. 



MISCELLANEOUS. 135 

This is an important matter. Mr. Seward was so connected with 
the greatest events of the last twenty years, that a misrepresentation 
of his life is a falsification of public history. Besides, he differed so 
widely from all his predecessors and many of his contemporaries, that 
unqualified approval of him implies the severest condemnation of 
them. Your own consciousness of this is betrayed in your harsh de- 
nunciations of those who committed no crime but that of being op- 
posed by him. If Mr. Seward was not a wise and virtuous man — if 
he was unfaithful to his public duties — if his joolicy tended to the cor- 
ruption of morals and the consequent destruction of popular liberty — 
if he was not true to the Constitution and laws which he often swore 
to execute — then you have done a most pernicious wrong in holding 
him up as an example for others to follow. 

I hope I have made a sufficient apology for the presumption of 
which I seem to be guilty in declaring that your address is full of mis- 
takes. 

Your comparison of Mr. Seward to Pericles was rash and extrava- 
gant. A little reflection and another reading of Plutarch will satisfy 
you that the New York politician bore not the slightest resemblance 
to the illustrious Athenian whose transcendent genius as a military 
commander, orator, scholar, philosopher, lawgiver, judge, and jurist 
brought the greatest people of the earth to the summit of their glory 
in arms, in arts, and in literature. The difference could not be greater. 
As men they had something in common — organs, dimensions, senses, 
affections, passions — and each was remarkable in his way ; but every- 
thing that distinguished them from the rest of the world equally dis- 
tinguished them from one another. They were alike in no character- 
istic quality, moral or mental. There is not one parallel passage in 
their history. A true picture of Mr. Seward's life will not show a 
single feature which can be recognized even as a miniature likeness of 
any trait in that of Pericles. 

It is easy to eulogize a man by appropriating to him the qualities 
of another whom history has already consecrated to the admiration of 
mankind. This cheap and compendious mode of dealing with the 
fame of an ancient hero or sage, by transferring it in bulk to a mod- 
ern favorite, is often resorted to, and almost always fails of its pur- 
pose. Mr. Lincoln was said by his admirers to be a reproduction of 
Socrates ; Eobespierre was the Aristides of the French Assembly, and 
Klootz was Anacharsis. Congress and the State Legislatures are full 
of Catos. We have them among the directors of the Credit Mobilier. 
I have heard Mr. Ames described as one who was Catonior Catone — 
more severely virtuous than the sternest of Roman censors. Your ana- 
logue is more absurd than any of these. You might as well have car- 
ried it out by showing that Mr. Thurlow Weed was the counterpart 
of Aspasia. 



1 3 6 MISCELLANEO US. 

But Pericles is not the only famous man that suffers at your hands. 
Mr. Seward once put in the plea of insanity for a negro accused of 
murder ; and you pronounce his argument " one of the most eloquent 
in the language." The speeches of such men as Meredith, O'Conor, 
and Reverdy Johnson are nowhere ; and Erskine's magnificent defense 
of Hatfield is rivaled if not eclipsed. 

Your claim of great professional ability for Mr. Seward is one of 
the most surprising you have made. The conviction is almost univer- 
sal that he knew less of law and cared less about it than any other 
man who has held high office in this country. If he had not aban- 
doned the law, he might have been a sharp attorney ; but he never 
could have risen to the upper walks of the profession. He would 
have been kept in the lowest rank, not by want of mental capacity or 
lack of diligent habits, but by the inherent defects of his moral nature. 
He did not believe in legal justice, and to assist in the honest admin- 
istration of it was against the grain of all his inclinations. You your- 
self are frank enougli to own that it was "not an occupation congenial 
to his taste," but that, on the contrary, ''he held it in aversion." Be- 
ing so constituted, it was impossible for him to tread the mountain- 
ranges of jurisprudence. He might as well have tried to be a great 
theologian without faith in the gospel. In fact, this was Mr. Seward's 
cote faible all through. If he had understood and respected the laws, 
he would have led a totally different life, and perhaps the general de- 
cay of our political institutions would not have taken place. 

But let us go over the particular case of which you have given a most 
elaborate report, derived, no doubt, from Mr. Seward himself, or from 
somebody else who was decidedly his comes and Jidus Achates. Your 
own facts and conclusions will show Mr. Seward's real grade as a lawyer, 
and at the same time test the value of your judgment upon his merits. 

A negro was indicted for the willful, deliberate, and cold-blooded 
murder of a whole family. The proofs of his guilt were very clear, 
and the public mind was, naturally and justly, pervaded with a desire 
that he should suffer the punishment due to him by the laws of God 
and man. It was legally necessary that somebody should appear for 
him at the trial. But you say that this duty was made so dangerous 
by the excited state of public feeling, that when the trial was called 
all the crowd of professional men hung back in terror — all except Will- 
iam Henry Seward ; but he, defying the " enormous hazard," and 
taking his life in his hand, stepped forward and undertook the service. 
And this you declare to have been "a scene of moral sublimity rarely 
to be met with in the paths of our common experience." 

The moral sublimity of this scene will cease to dazzle you when 
you recollect that no counselor ever exposes himself to the slightest 
danger by defending a criminal. There is no instance on record in 
which the public wrath, roused by a crime, has been vented in acts 



MISCELLANEO US. 1 37 

of Yiolence upon the counsel of the malefactor, for putting in truth- 
fully and honestly the best answer he could to the charge. Even 
falsehood, though it provokes contempt, is largely tolerated because 
it can do no harm in a competent court. The assertion that Mr. Sew- 
ard was in personal danger is contradicted by all experience in similar 
cases, and therefore wholly incredible. This acting as volunteer coun- 
sel for criminals was then, and has always been, as safe as it is com- 
mon. The heroism of it in this case was an after-thought possibly of 
the hero himself — probably of the comes ; certainly it did not come 
spontaneously into your head. 

The dramatic interest of your story is further spoiled by the fact 
that he did not volunteer unexpectedly, at the moment when the cause 
was called, when everybody else was scared, and after the judge had 
become hopeless of getting an attorney bold enough to assist him in 
complying with the forms of law. In Mr. Seward's speech, as quoted 
by you, he referred to a preliminary hearing which lasted two weeks, 
and at which he had appeared for the prisoner. He was then publicly 
connected with the cause as fully as he was afterward. The knowl- 
edge of the whole bar that Mr. Seward was already concerned might 
have accounted to you for their silence at the trial, without the impu- 
tation of cowardice which your statement implies. It is not certain, 
but the inference is a fair one from all the circumstances, that Mr. 
Seward sought the case anxiously, as furnishing a desirable opj)ortu- 
nity to display himself before the people. 

The insanity of the negro at the time of the murder was the only 
defense Mr. Seward set up for him. It was utterly false. This is con- 
clusively shown by the record. The jury was impartial, honest, and 
uncommitted by any previous expression of opinion ; the ability and 
integrity of the judge are not denied ; if any reasonable doubt of the 
prisoner's sanity had been raised by the proofs, his acquittal would 
have been perfectly certain. But the jury, upon their oaths, found 
him guilty, and the judge, satisfied that the verdict was right, pro- 
nounced sentence of death. 

The sample of the argument which you produce shows that, in- 
stead of being able and eloquent, it was literally no argument at all. 
It has no application whatever to the subject-matter under considera- 
tion. It makes no allusion to the evidence, and does not refer, even 
in the remotest manner, to any rule or principle of law. It is a mere 
parade of his own magnanimous and disinterested benevolence, mani- 
festly not intended to influence the tribunal, but to attract the admira- 
tion of the outside crowd to himself. Nothing could be more injudi- 
cious, in worse taste, or more out of place. The court and jury, hav- 
ing a case of life and death in their hands, and feeling the weight of 
their obligation to decide it rightly, must have listened to this irrele- 
vant trash with painful impatience. 



138 MISCELLANEOUS. 

Mr. Soward, ''nothing daunted" by the righteous judgment of 
the court and jury, "persisted in interposing every possible dilatory 
measure," and thus delayed justice from time to time until, at last, 
the negro died in prison. Then came the hour of his triumph. A 
post-mortem examination of the brain made by seven physicians "dis- 
played indications of deep chronic disease." This, in your opinion, 
" clearly proved " tliat he " had been right from the start" ; that is to 
say, Mr. Seward's assertion that his client was insane at the time of 
the murder, in a way which made him irresponsible for that crime, 
though contradicted by his actions during life, was established by the 
condition of his brain after death. Your acknowledged good sense, 
and that moderate amount of physiological science which you possess 
in common with all well-informed men, should have prevented you 
from believing this. The post-mortem indications of a brain-disease 
not immediately fatal are very obscure : supposing them to be plainly 
traced, no anatomist can tell how long or how short a time the disease 
existed ; it may have existed, and it often does, without deranging the 
mental faculties in the least ; no human skill can find anything in the 
matter of the brain from which a specific state of the mind can be in- 
ferred ; and it is a monstrous absurdity to suppose that seven physi- 
cians, or seven hundred of them, could, by dissecting this negro's brain, 
demonstrate that he was afflicted with a particular form of mental in- 
sanity which irresistibly impelled him to commit murder two years 
before he died. 

The sequel of this story, as you tell it, would show that Mr. Seward 
not only sacrificed himself, but magnanimously plucked down ruin 
upon his political friends. Your words are : "Here he was not only 
injuring his own interests, but those of the party with which he was 
associated. In vain did it labor to disavow all connection or sympa- 
thy with him. The press, on all sides, thundered its denunciations 
over his head. The elections all went one way. The Democratic 
party came sweeping into the ascendant. And all about the life of a 
neo-ro idiot." These amazing facts were not known or suspected be- 
fore you uttered them. The political history of our country has not 
instructed us that all the elections of that period turned upon the trial 
of a negro at Auburn, New York, or that one party was completely 
wrecked and another swept up to the seats of power merely because 
Mr. William II. Seward tried in vain to procure the acquittal of a 
murderer on false pretenses. It can not be true. The odium of his 
conduct, whatever that may have been, was all his own. It had no 
possible connection with any question at issue between the parties of 
the nation. It was as likely to produce an earthquake as the great 
political revolution which you assert to have been its consequence. 
The good faith with which you make the statement is not questioned ; 
but it is such an outrage on historical probability as no prudent writer 



MISCELLANEO US. 139 

of acknowledged fiction would adopt. Its extravagance would deform 
the plot of a romance. It shocks the mind of an intelligent reader 
like the narrative of a German novelist who tells how the peace of Eu- 
rope was broken by a naval conflict on the Ohio River, between fleets of 
English cruisers and French merchantmen, in 1751, when, as every 
schoolboy knows, the Ohio had never felt the pressure of any craft 
heavier than a birch canoe. 

It seems that Mr. Seward was, about the same time or a little be- 
fore, employed for another negro — a convict in the State-prison, who 
had killed one of his associates. Here also the defense was a false 
one. You dispatch your account of the trial by saying : " The argu- 
ment rested on the insanity of the jirisoner. But it carried no iveiglit. 
Within a month the convict was tried, condemned, and executed." 
What else could have been expected ? Do you think this felonious 
murderer should have gone unpunished ? If yes, why ? Because 
Seward was his counsel ? Because the defense was a false one ? Or, 
simply because he was a negro ? You say, in a mournful tone, that 
Mr. Seward's conduct in this matter "was not viewed favorably in the 
neighborhood." Are you not the most unreasonable man in the world 
to think that it should have been ? Attempts to get criminals oif by 
false pleas are often forgiven, especially when the fraud is defeated by 
the justice of the courts ; but they are never regarded with approba- 
tion or favor by an honest community. 

Mr. Seward's behavior in these two cases, though it hardly de- 
serves the severe and universal condemnation which you say it re- 
ceived from all classes of the 'people who witnessed it, was, no doubt, 
very discreditable to a man of mature years who had held the highest 
executive office in his State. It must have prepared all who knew him 
to expect that his course as a politician would come to no good. That 
love of justice, that reverence for truth, and that high regard for the 
public safety which he did not display in his forensic efforts, arc as 
necessary to a statesman as a lawyer. We will see if you have exagger- 
ated his merits in one capacity as much as in the other. 

lie began his active political life with Anti-Masonry, A charge 
was publicly made that one William Morgan, a citizen of Western New 
York, had been forcibly seized by Masons and taken out of the State 
to prevent him from revealing the secrets of their society. To kidnap 
a freeman and lawlessly carry him away beyond the reach of habeas 
corpus or other relief was at that time regarded as a most atrocious 
crime, and the people in great numbers cried aloud for the punish- 
ment of the malefactors. A judicial investigation was obviously 
proper ; the accused parties were indicted and tried. Mr. Seward took 
no part in the legal proceedings which were instituted to ascertain the 
truth of the charges and to punish guilt according to law. That was 
a business to which you say, with truth, "he had an aversion." He 
10 



140 MISCELLANEOUS. 

set himself the task/ " more congenial to his taste," of hissing up 
popular prejudice against those who were known to be innocent. A 
faction was organized which became locally powerful. lie worked 
himself to the front of it, and was elected State Senator. 

The managers of this political enterprise seem to have had no sin- 
cerity. They professed to believe that the country could not be safe 
until every Freemason was excluded from office and stripped of his in- 
fluence ; but, as soon as they could, they transferred themselves and 
their followers, without reservation of body or soul, to another party, 
which John Quincy Adams described as " a base compound of Royal 
Arch Masons and Hartford Convention Federalists, held together by 
no bond but that of a common hatred for better men than them- 
selves." They fostered the growth of Anti-Masonry until it was large 
enough to sell — just as a dealer in live-stock fattens a calf until it is 
ready for the market, and then lets it go for what it will fetch. That 
Mr. Seward had any faith in the Anti-Masonic creed is rendered ex- 
tremely doubtful by the alacrity with which he entered the service of 
the ''base compound," and the rewards he took for doing so. If his 
indignation was actually excited by the abduction of Morgan, he must 
have got bravely over it before he boasted to Lord Lyons of his own 
exploits in the kidnapping line. The just and reasonable as well as 
the charitable conclusion is, that on these, a? on other subjects affect- 
ing the rights of his fellow-citizens, he had no convictions whatever. 

You are out in your chronology when you say that Anti-Masonry 
made him Governor of New York for two terms, unless you mean to 
credit Anti-Masonry with Avhat Whiggery did in pursuance of the bar- 
gain and sale. But in fact Mr. Seward, before his election as Govern- 
or, had shown the flexibility of his political principles by supporting 
Masons as heartily as he had ever opposed them. It can not be said 
that he was not true to the Whigs as long as he was with them and of 
them, or that he did not earn the promotion they gave him. He went 
through thick and thin for tariffs, banks, internal improvements by 
the General Government, distribution of surplus revenue — all their 
superstitions ; and in 1840 he kindled in the general blaze of enthusi- 
asm for hard cider and coon-skins. He never once broke faith with 
them by discountenancing any partisan slander which could weaken 
the Democracy in its desperate struggle to preserve, protect, and de- 
fend the Constitution. 

There is no evidence that he ever contaminated his fingers with 
base bribes, or put into his own pocket the wages of any special in- 
iquity ; but Mr. Welles's statement is undeniably true that he was inti- 
mately associated with the leaders of the most corrupt rings at Albany 
and Washington, and devoted much of liis parliamentary skill to the 
promotion of their schemes, while they in return were the most effi- 
cient supporters he had for the presidency. As a public debater he was 



MISCELLANEOUS. \W 

distinguished almost exclusively by elaborate efforts to propagate those 
licentious doctrines which have since demoralized the public service 
and put common honesty out of countenance. 

One incident which you mention is so characteristic of you and him 
both, that it must be adverted to. In 1848 the Buffalo Convention 
nominated Mr. Van Buren and you as candidates for President and 
Vice-President, against General Taylor, the Whig, and General Cass, 
the Democratic candidate. Mr. Seward professed to believe most de- 
voutly in your anti-slavery platform. Nevertheless he voted and spoke 
for General Taylor, '' a planter holding many slaves in one of the rich- 
est cotton -producing States." You were astonished and grieved at 
this inconsistency, which " seemed at first blush too preposterous to 
be countenanced for a moment." You have pnzzlcd over this mystery 
ever since, in the belief that some solution might be given creditable 
to his patriotism and sincerity ; and your explanation is still very far 
from a clear one. You do not go the right way about it. Your mis- 
take consists in looking for the motives of his conduct among those 
high public considerations which would have influenced your own in a 
similar situation. The riddle is easily read. You have only to remem- 
ber that Whiggery was strong enough to make him a Senator in Con- 
gress, for which he was at that time a candidate, while you could do 
nothing for his personal interest. Would he go out empty-handed 
from a party which was able and willing to give him his '* back pay," 
for the sake of uniting his fortunes with a forlorn organization like 
yours? Would he "leave that mountain to batten on this moor"? 
Was it not ^^preposterous" in you to expect such a sacrifice ? You 
thought, like Othello, that he " should be honest" ; he believed, with 
lago, that he 

" Should be -wise, for honesty's a fool, 
That kaows not what it works for." 

It is now more than time that we turn to his achievements in the 
field of national politics, and especially to his dealings with the South- 
ern States on the slavery question. Thanks to your researches and 
your candid account of the result, we are at no loss to understand the 
character of these measures or the animus with which he advocated 
them. 

You inform us that long before he became Senator he made a speech 
at Auburn in which "the deliberate claim of a right in the Federal 
Government to emancipate slaves by legislation was not less remarkable 
than the miscalculation of the force of the passiotis which led the 
South, in the end, to the very step that brought on the predicted con- 
sequences." The miscalculation you speak of was thus set forth by 
Mr. Seward himself in the speech from which you quote : " The South," 
said he, " will never, in a moment of resentment, expose themselves 



14:2 MISCELLANEOUS. 

to a war with the North while they have such a great domestic popu- 
lation of slaves ready to embrace any opportunity to assert their free- 
dom and inflict their revenge.'' In other words, Federal legislation on 
the domestic concerns of the Southern States, however unjust it might 
seem to the Southern people, would be quietly submitted to by them 
for fear of a Northern war accompanied by negro insurrection and 
massacre. This brilliant and humane conception wins your approval, 
and proves, in your opinion, that Mr. Seward had a special genius for 
administering government in a country of laws. 

With these views he came into the national councils, and made it 
known without delay that the experiment was to be tried incontinent- 
ly. At the very outset of his career in Congress he began to press the 
bloody cup to tlie lips of the South. As soon as he had a voice in the 
Federal legislature ho announced that emancipation was near and in- 
evitable. It might be peaceable or violent, and every effort to hinder 
or delay it " would tend to the consummation of violence." He would 
hear of no compromise and offer no terms to the South. For them 
there was but one alternative : submission or death. This mode of 
beginning his senatorial duties, persistently followed up, made him 
your beau-ideal of a great statesman : far superior to Clay and Cal- 
houn, who " equally relucted " at his pohcy ; and towering high above 
Webster, who " never could make up his mind to meet it fully in the 
face," because he saw there the Union broken into dishonored frag- 
ments and the country drenched with fraternal gore. 

By many persons who knew him well, these ferocious demonstra- 
tions of hostility to the public peace, the Union, and the Constitution, 
were regarded as the claptrap of a mere demagogue ; shams intended 
to cajole the ultra-abolitionists, and flatter their cruel rapacity with 
hopes of blood and plunder which Avould never be gratified. Those 
who held this opinion, Avhile they did not think him a dangerous man, 
had a most unspeakable contempt and detestation for his character. 
But others took him in a more serious way. Southern men espe- 
cially believed it unsafe to despise his threats of pain and ruin. They 
watched his gathering strength with dread and terror, and, when his 
fortunes culminated in the possession of supreme authority, they felt 
that their hour had come. 

You found it easy enough to say that he was the greatest of Ameri- 
can statesmen, and that he proved it by proposing such legislation as 
this. But consider a moment Avhether it was consistent with any true 
idea of wisdom or justice. 

You will concede the simple point that Congress had no jurisdic- 
tion over the subject of slavery in the States. AYhat he contemplated 
and desired and worked to accomplish could not be done without a 
fraudulent breach of the trust on which he and all others held and ex- 
ercised the powers of the Federal Government. The practicability of 



MISCELLANEOUS. 113 

carrying out the usurpation was based on tlie assumption that the 
Southern people would choke down their resentment and submit tamely 
to bo stripped of their constitutional rights ; and this you admit to 
have been a miscalculation of the passions which would be roused by 
the attempt. It follows that Mr. Seward's political clief cVmuvre con- 
sisted merely of a fraud and a blunder compounded together. Have 
you not proved your great statesman to be alike destitute of principle 
and prudence ? 

He pleaded ''the salutary instructions of economy and the ripening 
influences of humanity" in favor of his measures. These '"'instruc- 
tions" and "influences" have probably made so deep an impression 
on your susceptible heart, that you are willing to condone both the 
fraud and the blunder for their sake. You will not assert the infa- 
mous maxim that the end justifies the means ; but you have made up 
your mind that Mr. Seward's object in legislating on the internal 
affairs of the South was, in itself, so beneficent as to make a breach 
of his fidelity to the Constitution a venial sin if not a virtue. And 
you think the passions of the South were so monstrous and unnatural, 
that to miscalculate and ignore them was not a very bad mistake, after 
all. 

But look a little further. The Southern people sprang from a race 
accustomed for two thousand years to dominate over all other races 
with which it came in contact. They supposed themselves greatly 
superior to negroes. Most of them sincerely believed that, if they 
and the Africans must live together, the best and safest relation for 
both that could be established between them was that of master 
and servant. They thought it could not be abolished without a 
revolution disastrous to their material prosperity and fatal to their 
social organization. They did not think it sinful. The Bible fur- 
nished evidence satisfactory to them that God himself had framed 
a constitution and laws for his chosen people, which made Israel 
a pro-slavery commonwealth as much as Virginia or South Carolina. 
Their religious teachers had told them for many centuries that the 
canons of the Christian Church did not oppose it, but would hold 
them morally responsible only for the abuse of the power it gave them. 
They knew that the fathers of the republic, and other men, the best 
and greatest of all the ages, had lived according to this faith and taken 
it with them " through the valley of the shadow of death." Some of 
them believed it a dangerous evil, but did not see how to get rid of it. 
This last class were especially resentful of outside interference. They 
felt, as Jefferson did, that they " had the wolf by the ears " ; they 
could neither hold on with comfort nor let go with safety ; and it 
made them extremely indignant to be goaded in the rear. In all that 
country, from the Potomac to the Gulf, there was probably not one 
man who felt convinced that this difficult subject should be deter- 



144 MISCELLANEO US. 

mined for them by strangers and enemies. Seeing that wo in the 
North had held fast to every pound of human flesh we owned, and 
cither worked it to death or sold it for a price, our provision for the 
freedom of unborn negroes did not tend much to their edification. 
They had no confidence in that " ripening influence of humanity," 
which turned up the whites of its eyes in horror at the sight of a 
negro compelled to hoe corn or pick cotton, and yet gloated over the 
prospect of insurrection and massacre. They were nearly vmanimous 
in the opinion that this Yankee intrusion into their aifairs was 
prompted by rancorous hatred of the white people, or that it pro- 
ceeded, at best, from that monkey-like spirit of mischief which is 
never content without thrusting its unwelcome nose into somebody's 
kitchen or somebody's church. They had a tradition among them 
that it was not their fathers who brought the Africans to this country. 
They charged the cruelties of the slave-trade and the horrors of the 
middle i)assage upon the English and the Yankees; the planters 
merely received the savage negroes, tamed and domesticated them, 
taught them to work, converted them to Christianity, organized them 
into churches, and generally did more to improve their condition, 
materially and spiritually, than all the missionary societies that ever 
existed. Moreover, they had a suspicion that if they gave up their 
right of self-government on this subject, all their other rights would 
be taken away ; once placed without the pale of constitutional pro- 
tection, their Northern enemies would cut them up root and branch. 

Of course, I admit that in all this the Southern peo])le were 
blindly Avrong. They should have understood their Bibles difl'ercntly. 
They ought to have known that the negro was at least their equal, if 
not their superior. They were besotted not to see that Northern abo- 
litionists were the "wisest, virtuousest, discreetest, best " of human 
beings, whose tender hearts were always overflowing with pure benevo- 
lence, and who wished to control the local governments and domestic 
business of the South, not for their own profit or pleasure, but solely 
in the interests of God and morality. If they had seen things, as you 
see them, in this true light, they would have surrendered their right 
of self-government upon the first summons. But they could not so un- 
derstand the business. It was with them simply non possumus. The 
faith of a people, delivered and kept from generation to generation 
for thousands of years, can not be changed in a moment. Independ- 
ence, bravely won and long established, is not often given up with- 
out a struggle. Burke, speaking of these same communities, warned 
the British Parliament that slaveholders were, by their very habits of 
masterdom, made more vigilant, jealous, and hardy than other men 
in the defense of their own liberties. Everything was unpropitious to 
the spread of your doctrines among them. There was not a popula- 
tion on the habitable globe less prepared than they were to appreciate 



MISCELLANEO US. U 5 

the duty of passive submission. You must not judge them by your- 
self, or aj^ply to them the lofty standard of your own conscience. 
You contemplated things from a dilferent point of view, and had 
means denied to them of understanding tiieir religious and jjolitical 
wants. Even yet they can not see as you do the infinite blessing they 
enjoy in being subjected and abjectcd to Yankee rule. 

It has been ever thus. A sinful ])eo})le can never appreciate the 
holiness of the strangers wiio kill and rob them for their good. 
Philip II and the Duke of Alva determined to lay the Low Countries/ 
waste, and extinguish the heresies of the people in their own blood. 
This was to save their souls. The king expressed the object in his 
tersest Latin : " Malo regnum vastatum quam damnatum." But the 
Dutch "■ relucted " at this mode of salvation as much as Clay and 
Calhoun, and the whole population " in a moment of resentment " 
determined to "die in the last ditch." The righteous souls of the 
English Puritans were vexed from day to day that Catholicism should 
exist in Ireland. It was " a relic of barbarism " ; it was a " blighting 
curse"; there was an "irrepressible conflict" between it and the 
great truths which Puritanism had adopted. So the Puritans, im- 
I>elled like you by disinterested zeal in a great cause, and not at all 
by avarice or hatred, i)lundered the Irish, killed them by thousands, 
took possession of their churches, banished their native leaders, and 
set up a government of strangers to tax, titlie, confiscate, and impov- 
erish them. The Irish resisted tliis — fought it for centuries — and to 
this day they can not understand the purity of the Puritans. 

I admit that passions like these — so ineradicable and so deeply 
seated in tlie nature of man — should not be wantonly provoked. Cer- 
tainly the magistrate or Senator who bases his public policy on a " mis- 
calculation " of them, is not fit to bear the rule of any country. The 
miscalculation of your statesman was so gross and palpable, that it 
excites our special wonder how any man of common understanding 
could have made it. The wanton violation under any circumstances 
of a compact so sacred as that embodied in the Federal Constitution 
was alone sufficient to produce some feeling. To violate it for the 
purpose of breaking up important domestic relations in fifteen States, 
against the will of the States themselves and of all their jieople, was a 
most aggravating outrage. But to follow this with a declaration that 
it would bo enforced by a negro massacre, incited and led by the au- 
thorities of the government wiiich the victims themselves had built up | 
to protect them, was calculated to make the coolest blood boil over. . 
You yourself tell us that the neighborhood of Auburn Avas " intensely 
and not unnaturally excited " by the act of a single negro in the mur- 
der of a single family. What, then, must have been tlie natural in- 
dignation of Southern communities when they heard themselves 
threatened with a general slaughter ? Yet Mr. Seward, in counting 



146 MISCELLANEOUS. 

the consequences of his measures, left all these jiassions out of his 
calculation. It is hard to conceive how the dishonesty of breaking a 
political trust could be coupled with folly more extreme. 

Mr. Seward's rej^utation must rest forever on the three things 
which made him especially notorious all the world over. His fame, 
so superior, in your opinion, to that of the men who framed our laws 
and administered them faithfully for three quarters of a century, was 
not won as they won theirs. He was remarkably defective in nearly 
all the qualities which gave so much grandeur to their characters. 
But he was unquestionably greater than any or all of them put to- 
gether on " The Higher Law," "■ The Irrepressible Conflict," and 
*'The Little Bell." Of these, you touch the first in a gingerly way, 
and avoid all mention of the other two. If his theory and practice on 
these points are indefensible, you wronged your country and yourself 
by calling him a public benefactor and setting him up as '■' a light and 
a landmark " to guide his successors. 

Your reference to the higher law might be considered evasive if 
it were not yours. You will excuse me, 1 am sure, for saying that 
your attempt to explain it, and your sneer at the opposition it met 
with as a mere " outcry " against an " obvious truth," show that you 
understand nothing about it. I transcribe your words : 

*' It was in this speech also that he enunciated the doctrine of a 
higher law than the Constitution, which gave rise to an infinite 
amount of outcry from even a very respectable class of people, who 
were shocked at the license thought to be implied by such an appeal. 
But it seems to me that no truth is more obvious than this : that all 
powers of government and legislation are closely restricted within a 
limitation beyond which they can not pass without being stripped of 
their force. This limitation may be purely material or it may be 
moral ; but, in either case, its power is similar if not the same. It is 
a familiar story which is told in the books of Canute, the great Dan- 
ish conqueror of Britain, that once, when his courtiers were vying 
with each other in magnifying their sense of his omnij)otence, he sim- 
ply ordered his chair to be approached to the advancing tide of the 
ocean and loudly commanded the waves to retire. The flatterers un- 
derstood the hint, and were abashed by this withering illustration of 
the ' higher law.'" 

From this it is apparent that you suppose the assertion of the 
Higher Law to have been a mere warning against attempts of legislation 
and government to overstep the material or moral limitations which 
would strip them of their force. But this is a palpable misconception. 

You will surely admit that there never was any question nor any 
argument joro or con about the powers of government and legislation 
to work miracles on the material creation. Did Mr. Seward think it 
necessary to deny that an act of Congress could make the sun change 
its appointed time for rising and setting, or " bid the main flood bate 



MISCELLANEOUS. 147 

its usual height," or invert the force of gravitation so that the rain 
would fall upward and the smoke tumble down ? Never since the be- 
ginning of the world did such thoughts enter a sane mind. That the 
courtiers of King Canute affected to believe in his power' to stop the 
waves by a royal order, and that he proved the contrary by actually 
trying the experiment, is a childish fable, never treated as an historic 
fact, much less as a '' withering illustration," by any grown man ex- 
cept yourself. 

Your interpretation of the Higher Law as operating to fix moral 
limitations to legislative power is equally inaccurate. You say that 
the limitation to legislation " may be either purely material or it may 
be moral ; but, in either case, its power [i. e., the power of the limi- 
tation] is similar, if not the same.'" Here you mean, if you mean 
anything, that a rule of civil conduct, enacted and prescribed by the 
supreme legislative authority of an established State, is as powerless 
if opposed by a moral objection as if it were in conflict with a mate- 
rial force. You think it safe to affirm tliat the mere iniquity of a law 
does, propria vigor e, defeat the intent of a lawgiver, in the same way 
that the winds and tides are said to have defeated Canute's jiroclama- 
tion to the waves of the Northern Ocean. Eeason and history both 
contradict you. From the days of Nimrod to the time of Grant, man- 
kind have been governed by laws as bad as the cruel perversity of their 
rulers could make them ; but, so far from being ineffectual, the 
nations of the earth have groaned under them and struggled against 
them in vain. Many recent enactments of Congress are open to the 
gravest moral objections, but no jot or tittle of them falls to the 
ground for that reason. The infamous combination of Yankee and 
negro thieves who now have the government of the Southern States in 
their hands are every day using their power to oppress and plunder 
their subjects in ways which shock all sense of justice ; but their laws 
are remorselessly executed ; right is overborne, and wrong revels in its 
insolent triumph. Here in Pennsylvania a similar class of miscreants 
have for years been preying like vultures on the prostrate body of the 
Commonwealth. It would be a delightful discovery to find that their 
enactments are stripped of all force by the self-acting power of the 
moral limitations which they transgress. But we have no hope of 
such relief, or any relief at all. Only the other day, in a convention 
to reform the Constitution, an effort was made to provide for the 
annulment of future immoral laws upon judicial proof of bribery and 
fraud used to procure their passage. The convention voted it down. 
Your fellow-disciples of Mr. Seward who lead us here not only deny 
that there are any moral limitations to the powers of government and 
legislation, but they believe that none ought to be imposed even in 
the grossest cases of the worst laws, known to be passed by the most 
open, shameless, and impudent corruption. 



148 MISCELLANEOUS. 

The Higher Law doctrine is not an assertion that the powers of 
goveruricnt and legislation are subject to material or moral limitations, 
or any limitations whatever. On the contrary, it spurns even the limi- 
tations of the Constitution, and asserts the right of the ruler to pass all 
boundaries which his physical force is strong enough to throw down. 

In words perfectly free from ambiguity, and by a long series of pub- 
lic acts which admit of no doubtful construction, Mr. Seward taught 
disobedience to the Constitution as a duty, and contempt for it as a 
patriotic sentiment. This principle (if it be lawful to call it a prin- 
ciple) was adopted, avowed, and acted upon by his party with almost 
entire unanimity, whenever and wherever they found their Avishes 
opposed by a constitutional interdict. By him and by them the old 
notion that the law of the land ought to be obeyed was scoffed at; 
and the practical assertion of a legal right which they desired to in- 
vade was, in cases without number, punished as a crime. This is the 
Higher Law which you must vindicate if you desire to prove Mr. Sew- 
ard a statesman. 

He did not propose to substitute another rule of conduct, derived 
from higher authority, in place of the system established by our 
fathers. It is not the will of God as revealed in his word that was to 
be obeyed. The Higher Law, as expounded by his school, is, theoreti- 
cally and practically, above all law, human or divine. It looks down 
upon the Decalogue with as much contempt as it does upon the liaheas 
co?yus act. It has no more respect for Moses than for Washington. 
Those who received it earliest and worked hardest to propagate it were 
notorious for their ribald abuse of Christianity. AVhen they met peri- 
odically, at Framingham and elsewhere, to proclaim the Higher Law, 
their invectives against the Constitution were accompanied by blas- 
phemies against God too shocking to be repeated. They had men 
among them who professed to be Christian preachers. How many 
were wolves in sheep's clothing, and how many sheep in wolves' cloth- 
ing, I know not ; but the leading one said that their object was to be 
accomplished by the ruin of the American church as well as the de- 
struction of the Federal Government. The doctrine was also sup- 
ported by Christian statesmen ; but you know, of course, that recent 
evidence proves their religion to have been a mere disguise. In fact, 
the Higher Law, in its whole character, is so directly in conflict with 
every precept of the Bible, that no man who has the least respect for 
one can possibly believe in or practice the other. 

This Higher Law, scouting the law of God and man— what is it ? 
It is simply not law at all, but license to use political power in any 
way that will promote the interests or gratify the passions of him who 
wields it. It tells those who administer the Government that they 
may do whatever they ca7i do. It abolishes all law, and puts in its 
place the mere force which law was made to control. 



MISCELLANEOUS. I49 

" Jura negat sibi nata ; nihil non arrogat arniis." 

How thoroughly it disregards the rights of men, and how exdn- 
sively it respects the mights of men, is seen in the whole history of its 
administration by Mr. Seward himself. His first enunciation of it 
was connected with his movement against the South. That part of 
the Union, being encumbered by its negroes and afraid of them, was 
too weak to defend its constitutional rights, and might, therefore, 
become the prey of the spoiler. He never once kidnapped a citizen 
until he had the organized physical force of the nation at his back. 
His victims were powerless men and women, who had no defense but 
their innocence. His great diplomatic achievement which you vaunt 
so loudly illustrates the rule clearly. Mason and Slidell were captured 
from a British vessel in plain violation of public law. But if there 
was a law higher than the Constitution and higher than all laws of 
God and man, it must also bo higher than the law of nations. AVhy 
should not the Higher Law " have free course to run and be glorified " 
on sea as well as on land ? The President could not see his way 
through these logical difficulties, and the Cabinet was all in a muddle. 
Mr. Blair denounced the conduct of Wilkes as an indefensible outrage 
which would be sure to make trouble, while Mr. Seward was as much 
delighted as if one of his deputy kidnappers had broken the head of 
an honest judge or dragged an independent editor to prison. But he 
remained in this frame of mind only as long as he sujiposed that Eng- 
land could not or would not resent the injury. He understood his 
own code well enough to know that it did not apply to a case in which 
the right was defended by a force strong enough to repel the wrong. 
When, therefore, England armed herself and uttered her stern demand 
for immediate reparation, his whole tone was changed. He not only 
backed squarely down, but he signalized the humiliation of the Higher 
Law by long-winded and superfluous praises of legal justice — 

"... mouth-honor, breath, 
Which tlie poor heart would fain deny, but dare not." 

This feature of Higher Law was kept in mind by the Administra- 
tion afterward. When the publishers of the Chicago " Times " showed 
their pluck by resisting a tyrannical order, and the people rushed to 
their rescue, the decree was revoked. The Higher Law invades only 
the rights of the weak and the defenseless. 

Called by other names, the Higher Law was practiced often before 
it was introduced here. Amurath securing his throne by killing all 
his brothers and uncles ; Herod slaughtering the innocents ; Nero 
persecuting the Christians ; Madame de Pompadour filling the Bastile 
with victims of her petty spite ; Lola Montez setting her dogs on the 
students at Munich for doubting the political wisdom of the king's 



150 MISCELLANEOUS. 

mistress — all these acted upon the same kind of law that Mr. Seward 
declared to be higher than the American Constitution. It reduces 
free government to a personal despotism. The citizen who volun- 
tarily submits to it is a slave in his soul. 

It will not do to say that the Higher Law was set up merely to 
meet the exigencies of the war, and had but a temporary reign. That 
Mr. Seward stabbed the Constitution in the back only after secession 
had struck it a blow in the face, would not be a valid excuse if it were 
true, nor a true one if it were valid. In point of fact, the Higher Law 
was proclaimed, urged, and advocated by him and by others as early 
as 1850, at a time of profound peace, and without reference to wars or 
rumors of wars. Its worst acts were done before the war, after the 
war, and at places where war never existed. In 18G7, two years after 
the peace, it embodied itself in the '' reconstruction laws," which did 
not leave one single provision of the Constitution unviolated. At 
the present moment it is adhered to with as much tenacity as ever. 
Do you know any member of the dominant party who abjures it, or 
13 rof esses to have been converted to the doctrine of legal obedience ? 
Have you the least reason to doubt that the abolitionists would to- 
morrow unite in a compact body to trample down the plainest consti- 
tutional rights of their opponents, North or South, if that were neces- 
sary to win supreme power, to retain possession of it, or to quell a 
dangerous opposition ? They may act within the forms of law for 
their own convenience and safety ; but where law that can be over- 
borne stands in their way, what reason is there to believe that they 
will respect it ? Let me tell you a fact. In 18G5, months after the 
peace, at the political metropolis of the nation, in full sight of the 
Executive Mansion, the Capitol, and the City Hall, where the courts 
were in session, a perfectly innocent and most respectable woman was 
lawlessly dragged away from her family and brutally put to death, 
without judge or jury, upon the mere order of certain military officers 
convoked for that purpose. It was, take it for all in all, as foul a mur- 
der as ever blackened the face of God's sky. But it was done in strict 
accordance with Higher Law, and the Law Department of the United 
States approved it. Now, mark you : within less than three months 
last past the present Attorney-General officially referred to this as a 
precedent entirely fit to bo followed. This may not be very impor- 
tant in itself, but it is significant as showing that the reign of Higher 
Law is not over yet. Can you promise that it ever will be ? Is there 
not reason to fear that this doctrine has poisoned all the streams of 
justice ? 

In every institutional government, whether it be a republic or a 
limited monarchy, the delegation of its powers is coupled with an ex- 
press condition that they shall be exercised only in a prescribed way, 
and Avithin certain defined limits. The violation of this condition. 



MISCELLANEOUS. 151 

under any pretense whatsoever, lias always, everywhere, and by all 
tolerably honest men, been regarded as a base and treacherous breach 
of tlie most sacred trust that can be confided to human hands. Among 
us no man can get possession of any official authority without first 
making a solemn covenant with God and his country that he will be 
faithful to the fundamental law, and he must seal that covenant with 
an oath. Can anything be more damning than the doctrine which 
teaches men to seek office and take this oath with a predetermination 
to break it ? Is any species of willful, deliberate, and corru^it perjury 
at once so debasing and so mischievous ? 

Yet the author and finisher of this atrocious faith is your model 
of a statesman. You find your highest standard of political ortho- 
doxy in his precept and his example. The men who made the Con- 
stitution and took it as a lamp to their feet and a guide to their path 
command none of your respect. Jefferson, the great apostle of lib- 
erty secured and regulated by law, is summarily set aside, and his 
*' modern disciples " who have kept their oaths are "cast into deep 
shadow " by the founder of an opposing school which makes systematic 
l^erjury the corner-stone of its policy. The expression of such senti- 
ments by a man like you is a deep injury to the cause of liberty and justice. 

You know what the Irrepressible Conflict was as Mr. Seward ut- 
tered it at Rochester. I present an analysis which you will admit to 
be accurate. He announced that — 

1. There was then a conflict between the North and the South — 
not merely a conflict of interests, opinions, and feelings to be deter- 
mined peaceably by reason or law ; but — 

2. It was a conflict between the opposing forces of the Northern 
and Southern States. Actual war already existed ; the relation of the 
parties was that of belligerent enemies. 

3. The determined purpose of this war, on one side, was to plant 
slavery in the North by force, and, on the other, to abolish it in the 
South by similar means. This, of course, involved the complete sub- 
jugation of the defeated party. 

4. The conflict was irrepressible. The dogs of war were loose, and 
could not be chained up again. 

5. The conflict should not bo stopped ; it must go on until all the 
rights of one section should be trampled down under the hostile feet 
of the other. Woe to the conquered ! 

You are, of course, aware that this was a mere invention. There 
was no such conflict as he described. The wish of himself and his 
party friends to visit the South with fire, sword, and famine may have 
been very strong, but the declaration that the Southern States were 
using their forces, or intended to use them, for the purpose of intro- 
ducing African slavery into the North, was such an offense against 
the known truth as admits of no palliation or excuse. 



152 MISCELLANEOUS. 

Yet it was believed and taken into the hearts of thousands and 
tens of thousands. Large bodies of men combined together in sects 
or parties are often excited to a kind of madness. In tliat condition 
their appetite for falsehood is unappeasable, and the gluttony with 
which they swallow it down is incalculable. One half the English 
people believed the transparent lies of Titus Gates about the "Popish 
Plot," and the other half did not dare to contradict it. " Know- 
Nothings " without number believed the frightful stories of Maria 
Monk and her coadjutors. And the abolitionists believed Mr. Seward, 
lie understood them, and had taken the exact measure of their cre- 
dulity. This time he made no " miscalculation of the passions " he 
would stir. Believing him, they saw in the South a cruel enemy pre- 
paring to crush out their domestic institutions, to subvert their State 
governments, and to smash up the whole framework of their society. 

On the minds of the Southern people the effect was still worse. 
To my certain knowledge it made more secessionists than all other 
causes put together. To every persuasion we addressed them in favor 
of legal obedience, union, and peace, Seward's speech furnished an 
answer. IIow was it possible, they said, for them to obey a Constitu- 
tion which we treated as a dead letter ? Could one party keep a com- 
pact if the other wantonly broke it ? " The Union ! a conflict is not 
union ; and, as to peace, your foremost man has told us that there is 
no peace." The terrible difficulties of their situation paralyzed their 
judgment. Exasperation took the place of that cool fortitude which 
had carried them through previous trials. Wisdom forsook their coun- 
sels. They gave up to their domestic foes the ship which they had 
often defended against foreign enemies, and trusted their destiny to 
secession — 

"... that fatal, that perfidious bark, 
Built in tlio eclipse and rigged with curses dark." 

Did Mr. Seward know Avhat he was doing when he started this 
Irrepressible Conflict ? If he did not, how can you feel any respect for 
his judgment ? But his newspaper organ at Albany (the " Evening 
Journal ") said for him that he did intend what happened ; and he 
himself, about 18G5, bragged that he had privately predicted the bat- 
tle of Gettysburg many years before the war broke out. The " Irre- 
pressible Conflict " was, then, on his part, a cold-blooded and delib- 
erate preparation for the sacrifice of life and property on a scale of. 
enormous magnitude, involving men, women, and children of every 
class and color in the North as well as the South. You think him 
wholly unlike Cleon, as being vastly better. But what did that un- 
principled tanner ever do, or propose to do, that was comparable to 
the atrocity of the Irrepressible Conflict ? You will say, as you have 
said, that Cleon " stimulated the passions of the Athenians to the 



MISCELLANEOUS. 153 

massacre of the male population of Mitylcne." But, remember, there 
were only about five thousand male Mitylenaeans all told (less than two 
thousand actually suffered), and they were foreigners and enemies. 
On the other hand, that population which Mr. Seward ''stimulated 
the passions " of the abolitionists and negroes to massacre were his 
fellow-citizens, living with him in the bonds of sworn amity, under a 
common Government, which owed equal protection to them and him- 
self. Perluips you will plead for Seward that the Southern people 
were slaveholders and " poor white trasli " whom it was no harm to 
kill ; but I reply, on the part of Cleon, that the Mitylenaeans were 
slaveholders also. Your contrast between Seward and Cleon is almost 
as much a failure as your analogy between him and Pericles. 

Before you asserted that Mr. Seward mvul the country, you ought 
to have remembered that, if the nation had been saved from him and 
his followers, and the Irrepressible Conflict which they created, it 
would have needed no other salvation. 

Now as to the Little Bell. The same Higher Law which gave the 
Federal Government power to legislate against the States in defiance 
of the Constitution would logically justify any executive outrage that 
might be desired for personal or party purposes on the life, liberty, and 
property of individuals. Such was Mr. Seward's theory, and such was 
the practice of himself and his subordinates and some of his colleagues. 
I will not pain you by a recital of the wanton cruelties they inflicted 
upon unoffending citizens. I have neither space nor time nor skill to 
paint them. A life-size picture of them would cover more canvas 
than there is on the earth. You were abroad as Minister to England 
when most of them were done ; but every wind bore you the reports, 
and you must have blushed for your country when you saw her de- 
graded in the eyes of the whole world. Since the fall of Robespierre 
nothing has occurred to cast so much disrepute on republican insti- 
tutions. 

When Mr. Seward went into the State Department he took a Little 
Bell to his office in place of the statute-book, and this piece of sound- 
ing brass came to be a symbol of the Higher Law. When he desired 
to kidnap a free citizen, to banish him, to despoil him of his property, 
or to kill him after the mockery of a military trial, he rang his Little 
Bell, and the deed was done. 

This man, to whom you would assign a place in history above all 
other American statesmen, took a childish delight in the perverted 
use of his power, and displayed it as ostentatiously as one of those 
half-witted boys who wore sometimes raised to the purple in the evil 
days of the Roman Empire. He boasted of it on many occasions, and 
crowed over the British Minister, telling him that his Queen could 
not do so much. Lord Lyons was dumb. Victoria had no Little 
Bell of that kind ; she swore at her coronation to govern according to 



154 MISCELLANEOUS. 

the laws of the realm, and she must keep her oath. For more than 
two centuries no English monarch had tried the experiment of Higher 
Law on his jjcople. Under Charles I, Straiford declared that " the 
King's little finger was thicker than the loins of the law " ; but he 
was tried for this and put to death as a traitor. For, acting upon 
Strafford's suggestion, the jjeople rose upon the King himself, dragged 
him to the block, and chopped his head off ; and the God of justice 
looked down from his great white throne in the heavens and smiled 
upon the deed. 

You may answer (as the disciples of your school generally do) that 
the men and women who have suffered under this tyrannous rule were 
mere Democrats, Copperheads, Union -savers, Doughfaces, Southern 
sympathizers, Bourbons who forget nothing and learn nothing, enter- 
taining opinions out of date and unfavorable to abolitionists, danger- 
ous voters, improper persons, whom it was decidedly advisable to take 
off ; and, as that could not be done according to law, it was right to 
do it against law. I will not affirm that the Democracy had any mer- 
its, but ask you merely to recollect that a legal right is always respect- 
able, even though the person who claims it does not stand high in your 
esteem. Besides, it was not expected that the party in power would 
oppress themselves. The law is, therefore, made to no purpose at all 
if it does not shield the weakness of their 02)ponents. You can not 
understand the value of a free constitution unless you imagine your- 
self in the situation of a minority, under the Higher Law rule. Then 
you will see the other side of the question. To deprive Democrats of 
their hereditary rights and pen them up in dungeons by the thousand 
without jury-trial or habeas corpus may be no more than a fair con- 
cession to the "ripening influence of humanity," and to rob them is 
according to the ''salutary instructions of economy" ; therefore, these 
are pleasant employments for abolitionists. But there is a differ- 
ence between doing and suffering. How would you like it yourself to 
be throttled by the minions of the Higher Law ? If you had been 
kidnapped and imprisoned or beaten and robbed by the hirelings of 
executive malice, or insulted by a mock trial before a body of pliant 
tools "organized to convict," perhaps you might have learned to value 
the Constitution as highly as it is valued by the worst of the Copper- 
heads. Yon would understand then how the Bill of Rights has come 
to be regarded as the gospel of the weak. It is even possible that you 
could in that case appreciate the admiration which Pitt exjoressed for 
Magna Cliarta when he said that three words of that bad Latin were 
worth more than all the classics. As it is, you have no sjiecial cause to 
dislike arbitrary power, and you can afford to admire the man who 
threw down the defenses of personal liberty. But you must not expect 
to be joined in this by that portion of the people who need the protec- 
tion of a free government. 



MISCELLANEOUS. 155 

Mr. Welles presents the subject of your eulogy in a very unpleasant 
light. Instead of the sagacity, candor, and patriotism for which you 
credit him, he was cunning and treacherous, '' to low ends industri- 
ous," and crooked in all his ways. I am no vouciier for this ; but 
besides Mr. Welles's own unquestioned veracity, and the circumstantial 
corroboration of his statements, there is a reason a 'priori for believing 
all he says, and more too ; the man who was notoriously false to the 
Constitution he swore to support, could not be true to anything. 

By Mr. Welles's paper it is distinctly made known that Mr. Seward, 
as soon as he came into office, concocted a scheme for the surrender of 
Fort Sumter into the hands of the secessionists ; that he drew General 
Scott into it, and tried to get the President's assent also ; that the Presi- 
dent having declined to surrender, and determined to re-enforce the 
place, a confidential friend and protege of Mr. Seward notified his 
confederates in the South of the movement about to be made ; that 
the whole plan and arrangement of the Administration for the relief 
of the fort was brought to nothing by a series of secret, deceptive, and 
underhand manoeuvres which Mr. Seward carried on without the 
knowledge of the War or Navy Department ; and that, while he was 
thus betraying his own associates, he wrote to secessionists that his 
faith pledged to them would be fully kept. These accusations seem 
to be proved by overwhelming evidence. I do not suppose that this 
will shake your faith in Mr. Seward's integrity and wisdom, or detract 
one atom from your admiration for the grand simplicity of his charac- 
ter. But suppose such a revelation to be made concerning a member 
of the Buchanan Administration, what would you say ? Would you 
present him to the country as its best example of a statesman, or 
would you hang him up for the execration of the world ? Would you 
sing posans to his virtue, or " cleave the general ear with horrid speech " 
about his wickedness ? 

You were a member of Congress when the election of Lincoln took 
place, and your conduct between the election and the inauguration 
was supposed to justify the respect which was felt for you by all the 
true friends of the country. I thought your speeches Avere the best 
rebuke that could be given to the intemperate malice of your party, 
which adopted no policy but that of slandering the existing Adminis- 
tration. I am sorry if I mistook you, and, if I was right, I will not 
cite you against yourself, for the argumentum ad Jiominern proves 
nothing. But Mr. Seward's behavior during that critical period was 
not worthy of his place. 

Your account of his situation at that time differs from his own. 
You say, in substance, that though he ought to have been early secured 
in a post, and other posts ought to have been filled under his advice, 
yet nothing was done for him until quite late in the session, when his 
friends were disposed to advise him to reject the tardy offer. But, on 
11 



150 MISCELLANEOUS. 

the contrary, his own written declaration is that it ivas early under- 
stood that he was to be appointed Secretary of State, and that he was 
regarded as rcprese7itin<j not only the incoming Administration but 
the pcirty by which it was elected. It is certain that his ego et rex 
mens style of speaking about himself and Mr. Lincoln created a gen- 
eral belief at Washington that he would be the Wolsey of the uqw 
Administration, with 

" Law in his voice and honor in liis hand "; 

while others would be subordinate, and the President himself little 
more than a hgure-hcad. In fact, he carried out this notion after he 
went into office, much to the disgust of his colleagues, as you may 
learn from Mr. Welles and Mr. Blair. 

Holding a position like this, a word fitly spoken by him would 
have saved the country from a whole Iliad of woes. But he was nar- 
row-minded, short-sighted, and destitute of the magnanimity needed 
in sucii a crisis. Instead of rising to the height of the occasion, he 
showed himself a mere politician. To tell what little things he did 
during that memorable winter would require a good-sized volume ; 
but there lives not even in your partial remembrance one great act 
to mark him as a patriot or statesman. 

Since you and Mr. Welles and Mr. Blair have put on record your 
personal reminiscences of him, I will add my contribution, believing 
that the fact I am about to mention throws a broader light on his pub- 
lic character tlian any which you have given. 

When the troubles were at their worst, certain Southern gentlemen, 
through Judge Campbell, of the Supreme Court, requested me to meet 
Mr. Seward and see if he would not give them some ground on which 
they could stand with safety inside of the Union. I consented, and 
we met at the State Department. The conference was long and ear- 
nest. I can not, within these limits, set forth even the substance of it. 
He seemed conscious of his power, and willing to use it in the inter- 
ests of peace and union, as far as he could without the risk of olfend- 
ing his own party. What could he do ? Many propositions were dis- 
cussed, and rejected as being either impracticable or likely to prove 
useless, before I told him Avhat I felt perfectly sure would stop all con- 
troversy at once and forever. I proposed that he should simply 
pledge himself and the incoming Administration to govern according 
to the Constitution, and upon every disputed point of constitutional 
law to accept that exposition of it which had been or might be given by 
the judicial authorities. He started at this, became excited, and vio- 
lently declared he would do no such thing. ''That," said he, "is 
treason ; that would make me agree to the Drcd Scott case." In 
vain I told him that he was not required to admit the correctness of 
any particular case, but merely to submit to it as the decision of the 



MISCELLANEOUS. 157 

highest tribunal, from which there could be no appeal except to the 
sword. 

You will sec that if such a pledge as this had been given and kept, 
the war could not have taken place ; it would have left nothing to 
fight about ; and the decent men of the Anti-slavery party would 
have lost nothing by it which they pretended to want, for even the 
Dred Scott case had inured to their practical benefit. But Mr. Sew- 
ard must have given up the Higher Law and denied himself the pleas- 
ure of kidnapping Democrats. 

I had never before heard that treason was obedience to the Consti- 
tution as construed by the courts ; but this prepared me to learn, as I 
did some time afterward, that the correlative virtue of loyalty con- 
sisted in trampling the laws under foot. What should the world 
think of the statesmanship which introduced these notions ? 

I do not know, but I believe, that Mr. Seward, in consequence of 
the conversation above mentioned, got Mr. Lincoln to commit him- 
self in the inaugural by the absurd and mischievous declaration that 
he would 7iot take his law from the Supreme Court, but would take it 
from the Chicago Convention. 

Your address has undoubtedly done much to diminish what little 
confidence was left in the Government as a protection to our personal 
rights. We can not help but feel that the security of life, liberty, and 
property must be fearfully slender in a country where a citizen of 
your standing can openly say that the owner and tinkler of the Little 
Bell was a statesman whose example ought to be universally copied. 

You arc a leader of the party calling itself '' Liberal Republi- 
can," whose platform is a protest against ini([uity in high places, and 
whose movements are a struggle for the restoration of honest govern- 
ment. Your compatriots know, if you do not, that the evils they de- 
plore were introduced by the man you advise them to imitate. Tlio 
party you oppose for its hideous corruption has but fashioned its 
moral and political principles upon the model which you now declare 
to be full of beauty and goodness. Your personal consistency is noth- 
ing ; but to go back in this way, not only on yourself, but on your 
friends and your country, is too bad. 

J. S. Black. 



158 MISCELLANEOUS. 



SPEECH AT THE CELEBRATION OF THE CENTENARY 
OF GRATTAN'S DECLARATION OF IRISH INDEPEND- 
ENCE, UNDER THE AUSPICES OF THE IRISH NA- 
TIONAL LAND LEAGUE, OF MARYLAND, AT CON- 
CORDIA OPERA-HOUSE, BALTIMORE, APRIL 18, 1882. 

He began by referring to some remarks of the mayor, and said lie 
would not bandy compliments with him. Except for the fear of seem- 
ing to do so, he would then and there express his admiration of that 
gentleman's high career as Governor of the State and Senator in Con- 
gress, with some reference to the perfections of his administration as 
chief magistrate of the city. 

My task (said Judge Black) is simpler than that which the mayor 
has j)erformed so excellently well. It will consist in making as plain 
as possible the issues between the enemies of honest government and 
its friends here as well as on the other side of the water. 

Are we, or not, required to do something for the relief of Ire- 
land ? This is a question on which, I think, no American citizen has 
a right to be silent. Therefore, and not because I would set myself 
up as a public instructor, I am where I am to-night. For seven cent- 
uries Ireland has worn the yoke of political bondage. During all that 
time, except one short interval, she has not been permitted to make 
any laws for the protection of her own people in their persons or prop- 
erty. What they call home-rule, or the privilege of local self-govern- 
ment, is wholly denied them. Their affairs are entirely directed by 
another power, whose orders are executed by agents and overseers sent 
upon them for that purpose. Such a government is sure to be admin- 
istered without the smallest regard for the rights, interests, feelings, 
or wishes of the people who are subject to it. Enemies and strangers 
so fastened upon the community will certainly rule for their own 
pleasure, advantage, and profit. Any person who does not know this 
to be a fundamental fact, established by all human experience and 
underlying the whole science of government, is not at all prepared to 
consider this subject, and he had better give no further attention to 
it. But if he understands that much, he also knows that the want of 
home-rule in Ireland is the want of everything else. As a consequence 
of that privation she is ojDpressed, degraded, insulted, steeped in pov- 
erty to the very lips, and overwhelmed with afflictions, which make 
her peculiarly what Senator Bayard has called her — ''the Island of 
Sorrows. " 

The general notion is that England and Ireland are united king- 
doms ; they are called so in the style and title of the Queen. But 
there is no real union, and there never was. There is a connection 



MISCELLANEOUS. 159 

made by force ; they are "pinned together 'with bayonets." Ireland 
is not governed according either to the common or statute law of Eng- 
land, but by special legislation made for her alone. An act of Par- 
liament passed for the general benefit of the Queen's subjects does not 
apply to the Irish people unless they are particularly included by name. 
The old statutes and royal concessions to popular liberty are so inter- 
preted as well as the later ones. Thus Ireland is construed out of 
Magna Charta, the Bill of Eights, and other great securities which 
make Englishmen safe against injustice. In effect, the British Gov- 
ernment, which is a limited monarchy at home, becomes an unre- 
strained and absolute despotism when it crosses the channel ; and the 
exercise of this unbounded power through all the centuries of its ex- 
istence has been marked with the coarsest cruelty and the most heart- 
less oppression that this world has ever witnessed. 

If the Irish had been inferior to the race which trampled them 
down, their fate Avould seem less hard. But, intellectually and mor- 
ally, they were greatly superior ; their civilization, science, art, and 
general intelligence were much further advanced. The deliberate and 
long-continued effort of England to darken the mind of Ireland and 
reduce her people as much as possible to ignorance and illiterate bar- 
barism is a most shocking part of the story. But I do not now pro- 
pose to tell it ; or, indeed, to go back upon the past at all, more than 
is necessary to explain the existing state of things. 

Undoubtedly much of the present trouble is directly caused by the 
unnatural relations existing between the millions whose labor cultivates 
the soil, and the landlords, small in number but great in power, who 
stand ready to snatch away the fruits of it as soon as they are gathered. 
Perhaps it does not make much practical difference how this domina- 
tion of the few over the many was established, but it is some mental 
aggravation of the wrong to think that it had its origin in mere rob- 
bery. The Irish were themselves the owners in full property of the 
land which they now cultivate only for the benefit of their oppressors. 

The first conquerors simply and unceremoniously appropriated the 
property. A forcible entry and detainer was held to be a good title, 
and the original owner was supposed to have lost his right merely be- 
cause he was not strong enough to keep it. But the whole island was 
confiscated again and again, some of it five times over, before it got 
into hands rapacious and loyal enoitgh to suit the policy of England. 
Then, however, the landlord system went into full operation. The 
great mass of the people were tenants, and every tenant was a slave, if 
it be true, as it certainly is, that the essence of slavery consists in 
making one man labor while another takes his earnings. A lease was 
a mortgage of the tenant's life and the life of his family, without the 
equity of redemption. It compelled him to work incessantly, with 
every limb stretched and every muscle swelled, from morning to night, 



160 MISCELLANEOUS. 

for ''the bit and the drop" — that is, the smallest quantity of food 
and drink that he and his children could live on — with a thatched roof 
above them and a little turf on the hearthstone. Very often they did 
not get that. A month's sickness reduced them to hopeless want, and, 
if a crop failed, starvation carried them off by the thousand. Such 
has been the operation of the system, such it is at the present moment, 
and the English Government is doing all it can to perpetuate it. 

You may say what you will about the sacred right of property — 
nobody believes it more devotedly than I do ; concede that these land- 
lords have a title which can not now be questioned ; assume that an 
owner of property may rent it on the hardest terms he can exact — still, 
the existence of that gigantic monopoly, clothed with the privilege of 
desolating a country and starving the industry of a people, is the sad- 
dest fact in the history of the human race. 

"We must speak respectfully of England. The vast wealth of her 
commerce makes it everybody's interest to stand well with her. Her 
armies circle the earth ; her fleets cover every sea ; the long reach of 
her diplomacy perplexes where it does not control the councils of all 
other states. This is power, and power is ahvays honored. It is said 
of Satan himself that he is "sometimes worshiped for his burning 
throne." But England has other and higher, if not stronger, claims 
upon our respect. Her literature is our own, and from her we derive 
much of our science and art. Englishmen framed the best of our 
laws, and our most valuable institutions are copied from theirs. Magna 
Charta, trial by jury, habeas corpus, and the Bill of Eights, are their 
inventions. We can not but remember that '''Chatham's language is 
our mother-tongue," and the great name of Hampden ranks only sec- 
ond to that of Washington. Nor can we forget that the present mon- 
arch of that country is a Queen whose personal virtues have a richer 
value than all the jewels in her crown. But those ministerial tools 
of a greedy aristocracy, who have done and are now doing all that in 
them lies to oppress and wrong a people to whom they owe protection 
— are they fit to govern ? No, not to live ! If I had the voice of an 
"angel, trumpet-tongued," I could not speak their condemnation more 
loudly than the truth would warrant. 

Except Ireland, all the nations of the earth have been making some 
progress. Improvements in joolitical as Avell as physical science and 
the discovery of new arts have brightened the face of the civilized 
world, and given dignity, independence, and comfort to the mass of 
its inhabitants. But the condition of the Irish people is more wretched 
than ever. A single fact will show how frightfully true this is : During 
the last forty years the population of other countries has doubled ; in 
some of them it has trebled, and the average amount of provision and 
clothing for each individual is two and a half times as great. But in 
Ireland, with a more genial climate and a soil incomparably rich, the 



MISCELLANEOUS. IGl 

numbers have been reduced from nine millions to five ; and, of those 
who survive, the great majority are suffering the last extremes of want 
and necessity. Where are the other four millions and their multiplied 
offspring ? What has become of the additional twelve millions who, 
according to the natural rule, should be living there now in comfort 
and plenty ? Famine has thinned them out ; pestilence has swept 
them away ; political persecution has driven them abroad. What is 
the cause of these terrible calamities ? All men, with one voice, charge 
them upon that atrocious misgovernment which blights and curses 
them. When the blood of that unhappy people cries from the 
ground, the British tyrant can not answer like Cain, " Am I my broth- 
er's keeper ? " The rulers of a nation are its keepers, responsible for its 
fate, and these men have an awful account to render. For every false 
drop in their veins an innocent life has per Jied. 

But if the Irish could not live by cultivating the soil, why did 
they not go to some other employment ? This is a pertinent ques- 
tion, and the answer to it covers England with an infamy that noth- 
ing else can match. In fact and in truth they did betake themselves 
to commerce and manufactures, and the hope was bright before them 
of a perfect success. But their English enemies ruthlessly broke up 
their business by penal legislation, destroyed their trade, both foreign 
and domestic, by arbitrary prohibitions crushed out their enterprise, 
and forced them back upon the land. 

Then why don't they fight ? They have tried that too. They 
never sunk into tame submission. The most pathetic passages of his- 
tory record the incidents of their struggle ; their rights have been as- 
serted with surpassing eloquence ; the purest poetry in any language 
celebrates their valor. A long line of their most illustrious men have 
suffered martyrdom in the cause of liberty, and the common file of 
the people maintain a character for turbulent disloyalty which ought 
to excite universal admiration. Their spirit was never broken ; they 
lack no gall to make oppression bitter. 

But each defeated effort to right themselves was made an excuse 
for the infliction of new outrages. Whole districts were depopulated 
by the process which they called a clearance— that is, the destruction 
of all habitations and the expulsion of all occupants, accompanied by 
circumstances of the direst cruelty. No chance was lost to hang or 
imprison a patriot. The higher he stood for talents and integrity the 
surer he was to be claimed by the scaffold or the dungeon. The yoke 
was tightened on all who were allowed to live and go at large. It was 
a mortal offense to meet and petition for the redress of grievances. 
Political opinions adverse to the government were sure to call down 
its wrath and malice. Even the fidelity of the people to their reli- 
gious convictions, the highest virtue that can adorn any human 
character, was imputed to them as a crime, and punished so bar- 



1G2 MISCELLANEOUS. 

barously that it can not bo thought of without detestation and 
liorror. 

I deny that this was in any true sense a conflict of religious opin- 
ion. Let no Protestant slander his church by asserting tluit its doc- 
trines contain any warrant for persecuting those who dissent from it. 
No Christian man, with a conscience of his own, ever thought himself 
authorized to force the conscience of another. English bigotry was 
merely simulated to cover English rapacity. I admit that the penal 
laws aimed directly at Catholics — their worship prohibited, their priest- 
hood hunted down, their cliurches taken from them, their schools sup- 
pressed, unarmed and helpless men, women and even children butch- 
ered on no charge but that of misbelief — these things did certainly 
look like sincere antipathy to the religion of the victims. But it was 
mere political piety, whic ^ is always a sham and a false pretense. 
For this judgment I can giv3 you cogent reasons. In the first place, 
before any ecclesiastical division took place, the Irish were robbed and 
murdered as basely as they were afterward. Secondly, at all times 
since the Reformation, Irish Protestants who stx)od in the way of Eng- 
lish greed were persecuted just the same as Catholics. None suffered 
more than the Presbyterians in the northern counties ; none came to 
this country with a deeper hatred of British tyranny or fought more 
bravely to overthrow it here. Lastly, the whole system has been 
abandoned within this generation. All Englishmen now acknowledge 
that the claim once made, to force upon the Irish a religion which 
they did not believe, was a great, monstrous, bloody lie. Why should 
we not take them at their word ? 

But what concern have we in this contest ? Why should we bo 
disturbed by wrongs which we neither suffer nor inflict ? I answer 
that, situated as we are, it is impossible to restrain our sympathies or 
school our feelings to the policy of a cold indifference. The Ivoman 
dramatist said, " I am a man, and therefore interested in all things 
human." These Irish are not merely human ; they are not Tartars, 
Mongols, Indians, Chinese, or negroes — far off and doubtfully con- 
nected with humanity. They belong to our own imperial race, whose 
physical structure, mental endowments, and capacity for improvement, 
put them ever in the foremost rank of men. More than that — they are 
our kith and kin ; we trace their ancestors- in the line of our own de- 
scent ; their blood, mingled with afllucnt streams from other sources, 
flows in our own A'cins. AYo arc near to them in another sense — 
the steamer, the telegraph, and the newspaper keep us in constant 
communication. If a now outrage is at this moment breaking the 
dull uniformity of their misery, all America Avill know it before break- 
fast to-morrow morning. Moreover, we owe them a heavy debt, 
which we can not repudiate without dishonor. They fought by our 
side on every battle-field of the Kevolution, and after Independence 



MISCELLANEO US. 1 G 3 

they assisted to frame our institutions. At least five times since then 
their exiles settled among us have aided to save our liberty from de- 
struction. They helped in 1800 to rescue us from the clutches of 
Federalism, which was tearing out the vitals of our government. 
Supported by them, we went through the blood and lire of 1812. 
They stood by Jackson in his desperate combat with a monster monop- 
oly. At a later day and in another crisis, uniting with the honest 
Germans and the decent part of our native citizens, they gave us 
strength enongli to repel the foulest assault that ruffianism and hypoc- 
risy ever made upon religious freedom. They were foremost in the 
fight for the Union when assured that its object was simply to main- 
tain the supremacy of the laws ; and they had no share in that per- 
jurious treachery which subverted the Government instead of defend- 
ing it. They were faithful to the Constitution when it had only 
seven friends in the Senate, and its avowed enemies were two to one 
in tlie lower house of Congress ; when the President was impeached 
for a feeble effort to support it, and the Supreme Court itself dodged 
and faltered and hesitated to decide that a free citizen could not be 
arrested without a warrant or hung without a trial. I speak of them 
as a body and of their general behavior. Doubtless there are many 
individual exceptions of which I know nothing. But fifty years ago 
and upward John Randolph said this: "I have seen a white crow, 
and heard of black swans, but an Irish opponent of American liberty 
I never either saw or heard of." 

But what can we do for them ? How can we help them in this 
fearful strait ? We have no right to come between England and her 
subjects by any kind of force or violence, for that is prohibited by the 
law of both countries and by treaty stipulations. But you have ways, 
well understood, of giving moral comfort and material aid which 
break no law. The most devoted adherents of the British ministry 
acknowledge that the success of their Irish jiolicy is more endangered 
by your opposition to it than by all other causes put together. A 
land league merely Irish they can easily repress, but a league with its 
roots on this side of the Atlantic will grow to be a power, not merely 
formidable but fatal to the ascendency of the landlords. To make 
this more intelligible will require a brief look at the situation. 

The formation of the Land League, or rather the assumption of 
its present attitude, was a new era in the history of the contest. Agri- 
cultural laborers resolved that they would not work for their ene- 
mies, and tenants said they would voluntarily pay no rent without 
distinct assurance of some permanent and substantial relief to the 
country. Acting upon the precept of the early Christians to bear one 
another's burdens, they solemnly covenanted that each should be sup- 
ported by the strength of all the rest. It was the grandest labor- 
stj-ike on record. 



164 MISCELLANEOUS. 

The association was perfectly lawful. No criminal design was 
ever imputed to it. Active assistance they would not render to their 
adversaries, but passive obedience to the law they would yield when 
they must. Nevertheless, it spread panic among landlords, middle- 
men, and bailiffs. They could not drive laborers to the field under 
the lash of an overseer, and they could not recover their rents by 
actions at law, for the tenant had a defense which no honest court 
could overrule. In a large majority of cases the contracts between 
the landlords and tenants were not free nor fair, but forced by the 
dread of eviction. Gladstone, the prime minister himself, declared 
that " eviction was the same as a sentence of death " ; and certainly a 
bargain extorted by the terror of death carries with it no legal or moral 
obligation. It is wholly void, not as to the excess alone, but all 
through, so that there can be no recovery of any part. The landlords 
were in evil plight. They had thought the law was made only for 
them, and they were disconcerted when they found it invoked against 
them. The contest deepened as it grew more intense. Some of the 
landlords took new views of their duties ; the league pressed its ap- 
peal to the heart and conscience of the British nation, and so a great 
revolution took place in public opinion. A new Parliament was 
elected, which included among its members the boldest and most elo- 
quent leaders of the league ; and a new ministry came in, solemnly 
pledged that Ireland should have justice without sale, denial, or delay. 

The Parliament assembled, and it soon became evident that the 
ministry, instead of facing the great question of the day like men, 
were anxious only to shuffle out of their promises. Pushed by the 
Irish representatives, they thi-ew themselves into the arms of the To- 
ries, and the two parties exerted their joint ingenuity to contrive some 
excusable way of not doing it. They utterly failed. The land act of 
1880 was a mere abortion. No attempt was made to sustain it ; in 
less than a year it ceased to live, and was buried out of sight. Some- 
thing had to be furnished in place of it. In spite of all warning, and 
against the steady protest of the wisest men, the land act of 1881 was 
elaborated and brought forth. Again all hopes were disappointed ; 
the new act exasperated everybody, and made the antagonism between 
the parties more deadly than ever. For this there were good and suf- 
ficient reasons. The principal (at least the most taking) feature of 
that enactment was the privilege it gave to an Irish tenant of citing 
his landlord before a judge or commission, and getting an abatement 
of the accrued rent, if the tribunal in its caprice or its mercy should 
choose to pronounce it exorbitant. Landlords cried out upon this 
as an arbitrary interference with their vested rights, and tenants saw 
that it cut them off from showing that the claims were illegal. Both 
were right, for in every case where a reduction took place somebody 
must suffer : the landlord, if his contract was valid ; the tenant, if 



MISCELLANEOUS. 165 

it was void. Besides, it created a power sure to be abused. The 
rights of the parties were not to be measured by any legal standard, 
and the unlimited discretion of the court was not to be controlled by 
a jury. Thus, matters affecting the most vital interests of every 
suitor were to be determined without the judgment of his peers, and 
with no regard for the law of the land. These are not the Avorst ob- 
jections to the thing. It is wholly inadequate to the needs of the 
people. It does not sensibly or permanently lighten their burdens ; 
it gives them no security against future wrongs ; it concedes to them 
no natural right ; it totally ignores the beneficent princij)le of local 
self-government, while it guards the power of the alien ruler with 
''love strong as death, and jealousy as cruel as the grave." 

The ministry knew very well that this was no remedy for the 
chronic disease that was taking the life out of Ireland. Doubtless 
they thought it might serve as a palliative, or at least stop the screams 
of the patient for a time. But it failed to do even that. It was a quack 
plaster, which covered scarcely a percej^tible part of the sore, and 
what it did touch was made worse by its poisonous irritation. The 
leaders of the people besought them not to swallow this stone, which 
they were offered in place of the bread they had asked for. They ex- 
horted them to maintain their attitude of passive obedience and keep 
up the peaceful strike, until its object should be at least in some meas- 
ure accomplished, which meant, " Without legal compulsion pay no 
rent, and do no work for these tyrants so long as they refuse to take 
their feet from off your necks." To the unanswerable wisdom and 
truth of this advice the Government had nothing to oj)pose except 
brute force. The league was called a conspiracy ; its petition for jus- 
tice was declared to be a revolt; its meetings were dispersed; the 
members of Parliament who had claimed fulfillment of the ministerial 
promises were arrested ; five hundred leading men, distinguished as 
advocates of justice to Ireland, and guiltless as the child unborn of 
any other offense, were kidnapped, dragged from their homes, and 
thrust into prison. 

For a long time Europe has seen no tyranny so atrocious as this. 
Within half a century Eussian despotism has not practiced that kind 
of cruelty, even in Poland, on a scale so gigantic. The Turk has been 
on his good behavior ever since the Greek Eevolution. It is more than 
a hundred years ago that the Bastiles of France used to be filled with 
the victims of personal and political spite. The English Government 
is more despotic than all the rest. It is a mixture of feudal barbarism 
and Oriental duplicity, harder to bear than mediseval tyranny. The 
hand of Gladstone is heavier on the heart of Ireland than the iron heel 
of Henry II. Do not forget that these sufferers are men of upright, 
honorable, and pure lives ; they suffer lecause of their good character. 
No man liable to be condemned according to the law is ever smitten 



166 MISCELLANEOUS. 

against law. The worst rulers are content with the regular ma- 
chinery of justice when they desire to suppress actual crime. It is 
only against the innocent that they employ the agency of the bravo 
and the kidnapper. The very order to seize these men, and keep them 
imprisoned without trial, is proof conclusive that they have done noth- 
ing Avorthy of death or bonds. They are accused of being suspected 
of lelieving that the land act of 1881 Avas not that kind of justice Ire- 
land needed or had a right to expect. I say that is a great truth, 
and when you suspect a man of believing it you suspect only that he 
is virtuous and wise. When the Government arrests a man on that 
kind of suspicion and refuses him a trial, its officers give him the 
strongest certificate of good character they can make, and they confess 
themselves guilty of simple kidnapping. 

Mr. Forster and others engaged in committing these outrages utter 
a shocking absurdity when they say that their object was to maintain 
law and preserve order. They commit crimes that strike Heaven in 
the face, and pretend to be doing it for the sake of the law that they 
violate. They break the faith that holds the moral world together, 
destroy all security for personal rights, establish a reign of terror, and 
they call that social order ! Is not this a contradiction in terms and a 
mere mockery of common sense ? I am able to maintain against all 
opposers that to seize an innocent man, put him in prison and hold 
him there, deprived of his liberty, is among the offenses against divine 
and human law which can not, under any circiTmstances, ever be justi- 
fied. This is true when it is joerpetrated by one private person upon 
another ; but it is almost infinitely Avorse when done by a magistrate, 
whose sacred duty it is to prevent such wrongs, not to commit them 
himself. 

For aught I can see, the kidnapping of five hundred innocent per- 
sons for not believing in the land act was as lawless as so many mur- 
ders. The secretary and lord-lieutenant might just as properly have 
silenced opposition to their measures by private assassination. An 
order that dissatisfied Irishmen should be stabbed in their sleep or 
poisoned in their food would seem more ferocious, but not less incon- 
sistent with justice or humanity. If Mr. Parnell and the league had 
managed to carry off Mr. Forster and five hundred of his ablest friends 
and kept them immured in dungeons for a period of hopeless end, the 
case could have been very plain but not worse than what Mr. Parnell 
has suffered, nor quite so bad, for the injury to him was inflicted by 
the very hand that was specially bound to protect him. 

This charge of lawlessness is not answered by showing that the 
atrocities complained of were done with the approbation of Parlia- 
ment. That body could not give to such crimes the sanctity of legal 
justice. I admit that Parliament is unlimited in its power to legis- 
late, but an ex parte order to kill or imprison a man is not legislation. 



MISCELLANEOUS. 1G7 

The coercion act is not a law, but a sentence. As a doom pronounced 
upon innocent and absent parties without notice, hearing, or trial, it 
was of course irregular, unjust, and unauthorized ; but still it was, in 
its nature, an adjudication against particular persons, not a rule of 
action. "When, therefore, the Viceroy and the Secretary for Ireland 
plead the coercion act, they do not justify their hideous crime, but 
only prove that a majority of the Lords and Commons are among their 
accomplices. 

If Herod of Judea had got an order from the Sanhedrim or some 
legislative council directing him to kill every child in Bethlehem 
whom he or his deputies suspected of being less than two years old, 
would that have sanctified the "slaughter of the innocents"? In 
point of fact, he had the legislative approval, for he was himself the 
law-making power, as well as the executive. So was Charles IX, when 
he put the lives of Coligny and his friends at the mercy of the Guises, 
and so brought on the tragedy of St. Bartholomew's eve. Louis XIV 
could gratify the spies and pimps about his court by sending innocent 
men and women to rot in his Bastiles, and say : " This is the law ; the 
state does it ; I am the state." The Eoman Senate did actually con- 
cur with ISIero in the decree which let loose the praetorian guards 
upon all who were suspected of believing in the gospel ; but that takes 
nothing from the historical infamy of the imperator, though it does 
add much to the bad reputation of the conscript fathers. 

In a court appointed, paid, and owned by the British Government 
and sitting in Ireland, this coercion act, which the ministry got a 
facile Parliament to pass, will probably be allowed to have some tech- 
nical effect, but in the eye of reason and justice it is no extenuation at 
all of their gross misconduct. 

Thus far I have spoken of the case as it stands between the British 
Government and its Irish subjects. Upon this we can only assist with 
our voices in making up the judgment of the world. But recent 
events have given us a more particular interest in the subject-matter. 
American citizens have been kidnapped as basely as the Irish patriots. 
What will we do about that ? I know not. Our own history has not 
always been a proud one, our diplomatic record is not free from blun- 
ders ; and the argumentum ad hominem, while it proves nothing, may 
embarrass discussion. But if we submit to this insult, we must ac- 
knowledge that England is the master of Ireland and America both. 
If, on the other hand, we call that lawless power to a proper reckoning, 
she will see the necessity not only of discharging the American prison- 
ers, but of making full and ample reparation, lest a worse thing come 
upon her. The release of the Irish will necessarily follow, for Eng- 
land can not afford to admit that she has yielded to fear what she 
denies to justice. This will advance the interests of freemen more 
than anything that has happened since Wellington and Peel knocked 



168 MISCELLANEOUS. 

under to the demand for Catholic emancipation. But the present 
ministry may not be as wise as their predecessors. They may resist 
our demand and bring on a breach of the extremely pleasant relations 
now existing between the two governments. What then ? I venture 
no prediction, but I do know that every true-hearted man in America 
will be glad of the chance to quarrel for a cause like that. 

I make no argument on the case. There is no open question about 
it. International law defines with j)erfect clearness how a citizen of 
one country may and must be treated when sojourning within the 
territorial jurisdiction of another. If that were not enough, we have 
treaties of amity, peace, and commerce with Great Britain which admit 
of no doubtful interpretation. Let no man fool you into the belief 
that England can lawfully kidnap an American without being respon- 
sible for the injury. Listen to no scurvy politician who tells you that 
there is any difference in this respect between a native and a natural- 
ized citizen. There is no difference — not a particle. One has pre- 
cisely the same right as the other to go forth unmolested over every 
sea and every laud. So says our own law ; so says the public law of 
Christendom. 

What is to be the final outcome of the struggle ? It needs no 
prophet to foresee that Ireland is doomed to total destruction if she be 
not supported and sustained by strength outside of her own. But if 
we, the American people, shall perform our duties fairly well, and if 
our Government shall not attempt to shirk out of its public responsi- 
bilities, the hope is a reasonable one that some of us now here may live 
to see Ireland "redeemed, regenerated, and disenthralled." 

It seems to me that the friends of Ireland, at home as well as here, 
have very indefinite ideas of the ultimate purpose they are seeking to 
attain. Of course, they all desire to save their country. But what is 
salvation ? In what form or by what means is it expected to come ? 
How would they go about to restrain misrule, protect life, secure lib- 
erty, and prevent labor from being robbed of the bread it earns ? 
These are questions upon which there is a painful diversity of opinion, 
and, if I am not mistaken, a vagueness of thought which greatly weak- 
ens the movement. 

I will not presume to advise them, but it is manifest that they 
should demand nothing extravagant or unreasonable ; nothing which 
it is impossible to get ; nothing unjust, communistic, or agrarian ; 
nothing which could affect injuriously the rights of property ; noth- 
ing, in short, except what ought to bo yielded. What, then, should 
they specify as their defined object ? 

Not independence. That is impossible at this time ; you might as 
well reach for the moon, and hope to pull it down. Those two islands 
can not now be politically separated. If a total political separation 
from England were possible, it ought to be accomplished and doubtless 



MISCELLANEO US. 



169 



it would liave been long ago, for the Irish haye suffered wrongs a 
thousand times greater than those for which we rebelled against that 
same power. If Ireland could successfully rise up against that bloody, 
tyrannical Government, " throw off the shackles of usurped control and 
hew them link from link," every honest American heart would swell 
with pleasure to witness it. But we are obliged to think of something 
less desperate. We can not, at least for the present, advise them io 
go out on a forlorn hope. 

But local self-government is another thing. It is the interest of 
England, as well as her duty, to grant that. If the Irish people were 
m full possession of the right to administer their own domestic affairs, 
they could perform their duties to the empire a thousand times better 
than now. They would be the pride and the strength of England ; 
not what they are— the weakness, the misfortune, and the shame.' 
When we consider how easily, cheaply, and safely this unspeakable 
benefit might be bestowed, it is literally amazing to see it withheld. It 
is but erecting one or more political corporations, which you may call 
states, or territories, or provinces, to make, administer, and execute 
laws upon subjects which concern nobody but themselves, and with 
such limitations upon the power as may seem necessary to prevent its 
possible abuse. If this, coupled with a satisfactory adjustment of land 
tenures, would not start Ireland on a career of peace and prosperity, 
then all history is false, all experience delusive, and all philosophy a' 
woven tissue of iies. Yet the average Englishman can not hear of 
home-rule for Ireland without becoming infuriated, and, if he happens 
to be clothed with a little brief authority, he falls to killing and kid- 
napping right and left whenever he can find men with spirit and prin- 
ciple enough to express opinions in its favor. This insane animosity 
can not last much longer. But political freedom can scarcely exist for 
a people subjected to the personal bondage of the Irish landlord sys- 
tem. Can that be abolished without violating honor and justice, or 
breaking over the legal defenses of property ? Let us see what can or 
can not be done in that direction. 

It is a mere truism to say that the land belongs to tlie owners. 
The title is in the landlords, and can not be questioned with any 
decent show of truth. To take it from them and give it to the ten- 
ants would be naked robbery, not in the least mitigated by the con- 
sideration that the tenants need it and the landlords can live without 
It. The eighth commandment is addressed alike to the poor and the 
rich. An objection similar in principle lies against any arrangement 
for fixing the rent by a public assessor or for reducing 'it without the 
consent of the landlord. That is the fatal vice-fatal, because it is a 
moral error which runs through the land act of last year. Ownership 
implies complete dominion. A man is not the owner of property if 
he can not keep it, or lease it, or sell it as he pleases. It would be 



170 MISCELLANEOUS. 

as righteous to take tlio land itself as the rent. It has been proposed 
that the landlords sliould sell and the tenants buy the lands at prices 
mutually agreed on, which is rather ludicrous, considering the situa- 
tion of the parties. The present land act points in a weak way to the 
policy of encouraging this by government aid. But as a general plan 
it can never succeed. The landlords will never part with the property 
unless they get three times as much as it is worth, for they count in 
as part of its value the power they now have of making the tenants 
work it for nothing. They want to sell the land which they do own, 
and with it the slaves which they do not own, at the highest price they 
can put upon both. 

But this huge mountain of sorrow may be removed easily, cheaply, 
and in a way oi)en to no legal or moral objection. Every established 
state — every supreme government of whatever form — has the right of 
eminent doninin— thai is to say, the power to take private property for 
public use upon making just compensation. It is a distinct and well- 
understood condition of all titles that they shall be surrendered upon 
those terms when the general good requires it. The sovereign authority 
may thus annihilate any monopoly which can not exist, or is not 
likely to exist, without serious detriment to the public interests. The 
l)roperty of tiie Irish landlords comes directly Avithin the range of this 
power. The exercise of it would not be agrarianism, nor conliscation, 
nor plunder. It could not injuriously affect the rights of any human 
being, but it would reach the one great end at which all honest gov- 
ernment is aimed — the well-being of the whole community. 

I have said that the owners of property so taken are always entitled 
to just compensation. The Irish landlords should have that and 
nothing more. The rule for ascertaining what ought to be paid in 
any case is so jilain that no fair-minded man could miss it. The act- 
ual value of land is not measured by the rent which a landlord could 
extort from a helpless tenant, to whom eviction is death ; but what a 
prudent and industrious man who cultivates it himself could make 
out of it over aiui above necessary expenses and full payment for his 
own labor. The taking would not include any property actually used 
by the landlords themselves for their own pleasure or prollt, nor any 
lands leased for other than agricultural purposes. But the body of 
the land now under cultivation or in pasture being taken by the pub- 
lic authorities could be distributed among the people in suitable pieces, 
and held by them subject to a tax large enough to pay interest on the 
actual value. Upon those terms, easy to the tenant and just to the 
landlord, Ireland would be converted into a nation of small proprie- 
tors, independent and free. 

Our fathers in Pennsylvania encountered exactly the same trouble. 
They grappled with it like true men, and, rightfully exercising the 
power of eminent domain, they put an end to it speedily. In ITTO the 



MISCELLANEOUS. 171 

Penn family owned probably move than fonr liftlis of her territory. 
The best citizens, dreading the fate of the Irish, were beginning to 
emigrate. Tiic Legislature declared that such a condition of things 
was inconsistent witii the happiness, safety, and freedom of the Com- 
monwealth. They divested the title of the Penus, and provided that 
in place of the lands they should take a certain just compensation in 
money. Let the British take the Pennsylvania case as a precedent. 
On a question of fundamental law or national jnstice they conld not 
have higher authority than the steady Quakers, the liigh-j)rincipled 
Germans, and the free-hearted Scotch-Irish who honored that State 
by making it their home. If the beneticial consequence be doubted, 
look at France, where the peasantry were oppressed and degraded by 
landlords as much as the Irish. But one result of the great licvolutiou 
was to divide the lands among small proprietors, and now the work- 
ing-men in the several departments are all rich — forty-nine out of every 
fifty increase their fortunes annually. 

I make no appeal to your sympathies or feelings. Your benevo- 
lence may sleep if the naked statement of the case does not rouse 
it. But pardon me if I conclude with a suggestion which touches 
your material interest. In all countries and in every age some per- 
sons have sought not only to live, but to llourish and fatten, upon the 
industries of others. Various methods of eifecting their objects have 
been introduced, by force or fraud and carried on xmder legal regula- 
tion. In feudal times the plan of those who held power Avas uniform 
and simple ; it consisted merely in extorting rents from the cultivators 
of the soil and taxes from those who worked at the mechanic arts. In 
modern days other inventions for the same i)uri)ose have been sought 
after and found out. Ijand and labor are the sources of all wealth, now 
as much as ever, and the legalized schemes are innumerable for drain- 
ing it away from those who create it. Some of these devices have 
been brought to as much perfection in this country as in any other. 
Here, as elsewhere, unjust legislation and cunning arrangements of 
business grind the working-man to swell the colossal fortunes of the 
upstart adventurer. Here, as elsewhere, the hastening evil is upon us 
of a community " where wealth acenmulales and men decay." The 
struggle to be free, which land and labor are nudving in Ireland, is not 
exclusively an Irish affair. "We make it a common cause, not merely 
because the love of justice and the sense of right impel us, but because 
this is a united effort to deliver ourselves as well as them from the 
hand of the spoiler. If we assist Ireland to win the victory she hoped 
for, we expand our own principles, perfect our own practice, and 
strengthen our own courage for a contest, perhaps more ai'duous, 
which we may have to wage on our own account. 
12 



172 MISCELLANEOUS. 



EAILROAD MONOPOLY.— ARGUMENT TO THE JUDICIARY 
COMMITTEE OE THE SENATE OE PENNSYLVANIA. 

Mr. Chairman : The irrepressible conflict between the rights of 
the people and the interest of the railroad corporations does not seem 
likely to terminate immediately. I beg your permission to put our 
case on your record somewhat more distinctly than heretofore. 

Why do I give myself this trouble ? My great and good friend, 
the President of the Reading Railroad Company, expresses the suspi- 
cion that I am quietly acting in the interest of some anonymous corpo- 
ration. I wish to contradict that as flatly as I can. 

The charge that I am communist enough to wish the destruction 
of all corporate projjerty is equally untrue. I think myself the most 
conservative of citizens. I believe with my whole heart in the rights 
of life, liberty, and property, and if anybody has struggled more faith- 
fully, through good report and evil, to maintain them inviolate, I do 
not know who he is. I respect the State Constitution ; perhaps I am 
prejudiced in favor of natural justice and equality. I am convinced 
that without the enforcement of the fundamental law honest govern- 
ment can not be expected. 

These considerations, together with requests of many friends, should 
be sufficient reason for doing all the little I can to get "appropriate 
legislation." At all events, it is unfair to charge me with any motive 
of lucre or malice. 

It is not proposed by those who think as I do that any corporation 
shall lose one atom of its property. A lawful contract between a rail- 
road company and the State is inviolable, and must not be touched by 
hostile hands, however bad the bargain may have been for the people. 
Mr. Gowen, and all others with similar contracts in their hands, are 
entitled each to his pound of flesh, and, if it be " so nominated in the 
bond," the Commonwealth must bare her bosom to all their knives 
and let them ''cut nearest the heart." 

But we, the people, have rights of property as well as the corpora- 
tions, and ours are — or at least they ought to be — as sacred as theirs. 
Between the great domain which we have conceded to them, and that 
which still belongs to us, the line is plainly and distinctly marked, and 
if they cross it for purposes of plunder they should be driven back 
under the lash of the law. It is not the intent of the amended Con- 
stitution, nor the desire of those who demand its enforcement, to do 
them the slightest injury. We only ask for that impartial and just 
protection which the State, as parens patricB, owes to us not less than 
to them. 

In the first place, it will, I think, be admitted by all impartial 
persons of average intelligence, that the companies are not the owners 



MISCELLANEOUS, 173 

of the railroads. The notion that they are is as silly as it is pernicious. 
It is the duty of every commercial, manufacturing, or agricultural 
state to open thoroughfares of trade and travel through her territory. 
For that purpose she may take the property of citizens and pay for the 
work out of her treasury. When it is done, she may make it free to 
all comers, or she may reimburse the cost by levying a special tax upon 
those who use it ; or she may get the road built and opened by a cor- 
poration or an individual, and pay for it by permitting the builder to 
collect tolls or taxes from those who carry and travel on it. Pennsyl- 
vania has tried all these methods with her turnpikes, canals, and rail- 
roads. Some- have been made at her own cost and thrown open ; on 
others, made by herself, she placed officers to collect a sisecial tax ; 
others have been built for her by contract, in which some natural or 
artificial person agreed to do the work for the privilege of appropriat- 
ing the taxes which she authorized to be levied. 

But in all these cases the proprietary right remained in the State, 
and was held by her in trust for the use of the people. 

Those who run the railroads and canals are always public agents. 
It is impossible to look at them in any other light, or to conceive how 
a different relation could exist ; because a railroad, which is not man- 
aged by public agents, can not be a public highway. The character 
of these agents and the mode of their appointment, even upon the 
same work, have differed materially. The Columbia Eailroad, and all 
the canals, were for a time under the management of officers appointed 
by the Governor, or elected by the people, and paid out of the State 
Treasury. Afterward the duty was devolved by the State upon per- 
sons associated together under acts of incorporation who contracted to 
perform it upon certain terms. The Erie and Northeast Railroad 
was at first run for the State by a company ; the company was removed 
from its trust for misbehavior ; the Governor then took it and ap- 
pointed an officer to superintend the work ; later the Governor's ap- 
pointee was displaced, with the consent of the Legislature, and the 
duty was again confided to a corporation newly chartered. 

None of these agents — neither the canal commissioners nor the 
State Receiver, nor any corporation that went before or came after — 
had the slightest proprietary right or title to the railroads themselves. 
To say that they had would be as preposterous as to assert that town- 
ship roads are the private property of the supervisors. 

The legal relations existing between the State and the persons 
whom she authorizes to supervise her highways was somewhat elabo- 
rately discused by the Supreme Court of Pennsylvania in the case of 
the Erie and N. E. R. R Co. vs. Casey (2 Casey, pp. 307-324). It 
was there determined that a railroad built by authority of the State 
for the general purposes of commerce is a public highway, and in no 
sense private property — that a corporation authorized to run it is a 



174 MISCELLANEOUS. 

servant of the State as mucli as an officer legally appointed to do any 
other public duty, as strictly confined by the laws, and as liable to be 
removed for transgressing them. 

All the judges concurred in this opinion. The two who dissented 
from the judgment did so on the technical ground that certain circum- 
stances, which would have estopped the State in a judicial i:)roceed- 
ing, disarmed the Legislature of the power to repeal. Neither they 
nor any other judge in this country, whose authority is worth a straw, 
ever denied the doctrine for which I have here cited that case, though 
it may have been sometimes overlooked, ignored, or perchance evaded. 
This principle and no other was the basis of the decisiorl in Pennsyl- 
vania and all the other States, that cities and counties might issue 
bonds or their money and tax their people to aid in building railways. 
The Supreme Court of the United States has affirmed it in scores of 
cases. It was so universally acknowledged that the Convention of 1873 
incorporated it into the Constitution as a part of the fundamental law. 
I do not know upon what foundation more solid than this any great 
princii)le of jurisprudence was ever established in a free country. 
When, in addition, you consider the reason of the thing, and the 
supreme necessity of it for the purposes of common justice, it seems 
like a sin and a shame and a scandal to oppose it. 

It being settled that the railroads and canals belong of right to the 
State for the use of the people, and that the corporations who havo 
them in charge are mere agents to run them for the owners, it will 
surely not be denied that all proper regulations should be made to pre- 
vent those agents from betraying their trust. The wisdom is very 
plain of those provisions in our Constitution which put them on a 
level with other public servants, and forbid them to prostitute their 
functions to purposes merely mercenary, or to engage in any business 
which necessarily brings their private interests into conflict with their 
public duty. Seeing the vast magnitude of the affairs intrusted ta 
them, and the terrible temptation to which their cupidity is exposed, 
it is certainly necessary that you hold them to their responsibilities, 
and hold them hard. 

But, on the other hand, the corporations deny that they owe any 
responsibility to the State, more than individuals engaged in private 
business. They assert that the management of the railroads being a 
mere speculation of their own, these thoroughfares of trade and travel 
must be run for their interest without regard to public right. If they 
take advantage of their power to oppress tlie labor and overtax the 
land of the State ; if they crush the industry of one man or place to 
build up the prosperity of another ; if they plunder the rich by extor- 
tion, or deepen the distress of the poor by discriminating against them, 
they justify themselves by showing that all this was in the way of 
business ; that their interest required them to do it ; that if they had 



MISCELLANEO US. 



175 



done otherwise their fortunes would not have been so great as they 
are ; that it was the prudent, proper, and successful method of man- 
aging their own affairs. This is their universal answer to all com- 
plaints. Their protests against legislative intervention to protect the 
public always take this shape, with more or less distinctness of out- 
line. In whatever language they clothe their argument, it is the same 
in substance as that with which Demetrius, the silversmith, defended 
the sanctity of the temple for which he made shrines, " Sirs, ye know 
that by this craft we have our wealth." 

That railroad corporators and their paid adherents should take this 
view of the subject is perhaps not very surprising. Nor does it excite 
our special wonder to see them supported by the subsidiary rings whom 
they patronize. But, it is amazing to find that this odious and de- 
moralizing theory has made a strong lodgment in the minds of disin- 
terested, upright, and high-placed men. Two members of the Senate 
Judiciary Committee— I do not say the ablest, because comparisons 
are odious— but they are both of them among the foremost men of the 
country for talents and integrity— these gentlemen emphatically dis- 
sented from me when I asserted that the management of the railroads 
was not a matter of business to be conducted like a private enterprise, 
merely for the profit of the directors or stockholders. A heresy so 
supported is entitled to serious refutation, however absurd it may seem 
on its face. 

I aver that a man or a corporation appointed to do a public duty 
must perform it with an eye single to tlie public interest. If he per- 
verts his authority to purposes of private gain he is guilty of corrup- 
tion, and all who aid and abet him are his accomplices in crime. lie 
defiles himself if he miugles his own business with that intrusted to 
him by the government, and uses one to promote the other. If a judge 
excuses himself for a false decision by saying that he sold his judg- 
ment for the highest price he could get, you cover his character' witli 
infamy. A ministerial officer, like a sheriff, for instance, who extorts 
from a defendant, or even from a convict in his custody, what the law 
does not allow him to collect, and puts the surplus in his pocket, is a 
knave upon whom you have no mercy. You send county commission- 
ers to the penitentiary for consulting their own financial advantage to 
the injury of the general weal. When the officers of a city corporation 
make a business of running it to enrich themselves at the expense of 
the public, you can see at a glance that they are the basest of crimi- 
nals. Why, then, can you not see that the officers of a railway cor- 
poration are equally guilty when they pervert the authority with which 
they are clothed to purposes purely selfish .? A railroad corporation 
is a part of the civil government as much as a city corporation. TJie 
officers of the former as much as the latter are agents and trustees of 
the public, and the public has an interest precisely similar in the 



1Y6 MISCELLANEOUS. 

fidelity of both. Why, then, should partiality or extortion be con- 
demned as criminal in one if it be tolerated as fair business when prac- 
ticed by the other ? Yet there are virtuous and disinterested statesmen 
among us who think that faithful service ought not to be enforced 
against the railroad companies, however loudly it may be claimed by 
the body of the people as their just due, and no matter how distinctly 
it may be commanded by the Constitution itself. 

I am able to maintain that all the corruption and misgovernment 
with which the earth is cursed, grows out of this fatal proclivity of 
public servants to make a business of their duty. Eecall the worst 
cases that have occurred in our history, and see if every one of them 
does not finally resolve itself into that. Tweed and his associates in 
New York ; the Philadelphia rings ; the carpet-bag thieves ; the Star 
Eoute conspirators — all went into business for themselves while pre- 
tending to be engaged in the public service. Oakes Ames distributed 
the stock of the Credit Mobilier where he thought it would do the 
most good to himself and others with whom he was connected, and 
that was business in him who gave and in them that took his bribes. 
Madison Wells, when he proposed to Mr. Kenner that he would make 
a true return of the election if he could be assured of getting " two 
hundred thousand dollars apiece for himself and Jim Anderson, and 
a less sum for the niggers," had as keen an eye to business as if he had 
been president of a railroad company, instead of a returning board. 
Certain greedy adventurers made it a business to rob the nation of its 
lands, and uniting with Congress carried it on so magnificently that 
they got away with an area nearly equal to nine States as large as Penn- 
sylvania. The imposition of the whisky-tax, excluding what was held 
on speculation, was business to the officers and legislators who were 
sharp enough to anticipate their own votes. You will see on reflection 
that every base combination which officers have made with one another, 
or with outside parties, has been a business arrangement, precisely 
like that which the railroads justify on the sole ground that it is 
business. The effect is not only to corrupt those who engage in such 
transactions, but to demoralize all who are tempted by personal and 
party attachments to apologize for it. 

When the officers of the Pennsylvania Railroad Company corruptly 
bought the remission of the tonnage tax, and thereby transferred to 
their own pockets an incalculable sum justly due to the State, it was 
business, rich to them and profitable beyond the dreams of avarice, 
while to the swindled tax-payers it was proportionably disastrous. 
The nine million steal of later date was a business enterprise which 
failed because Governor Geary most unexpectedly put his veto upon 
it. Still more recently the same corporation undertook to get from 
the Treasury of the State four millions of dollars to which it had no 
decent pretense of a claim. Never was any affair conducted in a more 



MISCELLANEOUS. 177 

perfectly business-like way. The appointed agents of tlie corporation 
came to Harrisburg when the Legislature was in session, and regularly 
set up a shop for tlie i)urchase of members at prearranged and specified 
jDrices. You condemn this piece of business because it was dishonest, 
but was it more dishonest than that which the same corporation ha- 
bitually does when it stands on the highway, and by fraud or force ex- 
torts from individual citizens a much larger sum in excessive tolls to 
which its right is no better than to the money it tried to get by bribery ? 

The functions of railroad corporations are as clearly defined and 
ought to be as universally understood as those of any servant which 
the State or General Government emjjloys. Without proprietary right 
in the highways they are appointed to superintend them for the own- 
ers. They are charged with the duty of seeing that every needed 
facility for the use of those thoroughfares shall be furnished to all citi- 
zens, like the justice promised in Magna Charta, without sale, denial, 
or delay. Such services, if faithfully performed, *are important and 
valuable, and the compensation ought to be a full equivalent ; accord- 
ingly, they are authorized to pay themselves by levying upon all who 
use the road a tax or toll or freight sufficient for that purpose. 

But this tax must be reasonable, fixed, certain, and uniform, oth- 
erwise it is a fraud upon the people which no department of the State 
government, nor all of them combined, lias power to legalize. 

It is much easier to see the nature and character of the mischief 
wrought by the present practices of the railroad companies than it is 
to calculate its extent. If your action depends in any degree upon 
the amount of the spoliation which the people of the State have suf- 
fered, and arc now suffering, for want of just laws to protect them, 
you certainly ought to direct an oflBcial inquiry into the subject and 
ascertain the whole truth as nearly as possible. 

But investigations have already taken place in Congress and the 
Legislatures of several States ; complaints founded upon specified 
facts come up from every quarter ; verified accusations are made by 
some of the companies against others ; railroad men have openly con- 
fessed their fraudulent practices, and sometimes boasted of the large 
sums they accumulate by them. Putting these together, you can 
form at least an approximate calculation. I doubt not you will find 
the sum total of the plunder they have taken in the shape of excessive 
charges to be frightful. 

Three or four years ago a committee of the United States Senate 
collected the materials, and made a report upon this general subject, 
in which they showed that an excess of five cents per hundred- weight 
charged on the whole agricultural crop of the then current year, 
would amount to seventy million dollars. Upon the crop of the last 
year it would doubtless come nearer a hundred millions. The railroads 
would not get this sum, because not near all of it is carried, but it 



wwalvi v»|HM":»to :K< :ui oxpvn't ta\ oivnuos ; ihat i.^s to 8;»v. tlio puniiuvr, 
tho ivnisumor, or tho iutornuHliuto doalor. would loso \\\M jimmiwi ou 
tho whole ej»i>. cjirruHi iwr not Oiuriod. In iSv^O tho oliaviix^s fi\>iu 
Ohioaijv to tho IvK^^torii markot.^ wojv rai^od from ion oontv-j jw huuilivd- 
woight to thirtv-tivo oont.^. tho latior n»to Iviuii" iniqiio,<tion;>blv twioo 
i\5 Ui^h rtii a fair ouo. Yovi oai\ count fiviu thos^o data tho torriblo loss* 
sustaiuod bv tho hmd. labor, and tnulo of tho Ov>unta*v. It was tho ond 
jind tho attaiumont of a oonUnnaiion 5>tiU suWi.^ting Ivtwivn tho givat 
trunk UuOis svs thoy aiv ivUloii. to jw^l thoir iwvipt.^. to stop all oont- 
[vtition, to unito tho stealing jv^wor of all into ouo grjuul niono}>oly. 
and put tJiO whole jvople at their uieivv. It \v;u>j a criminal eonsivir- 
aey bv the eommon and v^tatute law of all the 8tait\s. 

The magnitude of tJ\eso exeoi«i>ive ehargvs is not tho worst thing 
abont tiiem. Tho coriH^nvtious think it jxTfivtly right to i';iiso or 
lower the fivight a^i they pleas<o without wpvnl to tho rights or inter- 
est of 5W\vbovly but thoiuselves. .\ grait\-gro\vor. matin fiK^iuvr. n\iner. 
or meivhant, who eai\ sell hisgvHxls at a ^ivtit, if he can gvt then\ esu*- 
ried at the rates of t^^nlay. may tind himself ruiiunl tA>-n\on\>w by an 
ineivac>e which did nor enter into his calculations. A I'ise in tho tnar- 
ket innn^s not to the IxMiefit of tho pixxlnoor. but. to the use of tho 
CiUTying corporations, which ojxMily avow that their rule is to oharg\> 
in all CiisOiJ as much '* aci the tnitVic will Ivar " ; that is t<> Siiy. as much 
IV? the ship^xn* can subn\it to without Witig driven entirely otl tho 
nvul. You must siv plainly that this jxnver to ilopress agnculture. to 
diminish the prv>tits of manufacturing industry, and to skin the t\>m- 
meivo of tJio whole country by the arbitnu-y use of a sliding scale 
upon fivightjs can not s;vfoly W trust^xl to hiunan hands, and csix^- 
ciallv not to im^stx>nsible cm'ponuions wluvi5i> intoiv^t. as well as thoir 
acknowlodgixl principle of action, c\>nst;intly imjx^l thorn to abuse it. 
Can it W that a Pennsyh-juiia liOgislaturo will luv^itato to curb tho 
oanvr of this destructive mono\x>ly by adjusting the chaa*g\\s according 
to some rule equitable, tixeil. and ivrtain ? 

V>\\x even this sinks into insignificance comi^vred with the i\Tong .nnd 
evil of their discriminations. Common justice sound |x>licy, every 
sense of duty, the whole spirit and letter of tho law, iwpiiiv them to 
give every man equal facilities in tho use of the n^juls. and to charge 
them at the sjune rates for the sjune chkss of gixxis. awx^nling to 
weight and distance. Theiv can be no possible doubt alxnit this. 
Every nnpivjudiced man. who has sense enough to know his right hand 
from his left, acknowledges that equality must Ik> the rule of right : 
and he nndet^tands this perfectly well without kx>king at the Con- 
stitution, whoiv it is solomi\ly declaivd to W jwrt of the h\v h)}iiin. the 
law of laws, and the rule of all rules on tho subject. Yet this Siicixxl 
principle is constantly and steadily violated, trampled under foot, and 
treated with heartless contempt. 



MISCELLANEOUS. KO 

At the slightest glance you will see the enormotia injnry, direct 
and con-ioqncntial, which thcHC diHcriminations inflict upon the public. 
A man who investn his capital, or employ.H his time in mining or man- 
ufacturing, can be driven into bankruptcy at any time by a discrimi- 
nation against him, and in favor of his competitors. This is done 
every day, and all the time, not in a few cases here and there, but sys- 
tematically and regularly, whenever a carrying monopoly conceives 
that its own interests can be promoted in that nefarious way ; and it 
will continue to be done until the prohibition of the Constitution is 
enforced by penal enactment. 

Instead of breaking the foul bulk of these enormities, I will give 
you a sample — convenient, because it is small and easily handled. A 
neighbor and friend of mine (in partnership with another) became the 
lessee and operator of a coal-mine in Northumberland. For a short 
distance they were obliged to carry their product over one of the 
branches of the Pennsylvania Company ; they were charged for the use 
of the road and motive-power alone — there was no loading or unk^d- 
ing in the case, and no cars were furnished by the company — at about 
the rate of twenty cents per ton per mile ; while others whom tlie monop- 
oly chose to favor were let off at two cents. They paid the excess 
under protest, and brought suit to recover it back. It was as simple 
a case of extortion as can be conceived ; but certain officers of the 
Pennsylvania Itailroad Company swore that in their judgment it was 
right to commit it, and, moreover, declared that it was a usual, common, 
and customary practice. I blush to acknowledge that in all this the 
Supreme Court indorsed and abetted the corjjoration. The dialectics 
of the decision turned on a prohibition in the charter wjainM charg- 
ing more on an average than four cents per ton per mile — which was 
construed as a legal v)arrant for any robbery of one person which 
the company could prove to be balanced by the aggregate of favors 
shown to all others. But neither the greatest corporation in the 
State, nor the highest judicial tribunal, paid any respect whatever to 
the principle that all men's rights to the use of the public highway 
are erjual. 

It is known and not denied that this equality of right (sacred and 
fundamental though it be) is by the common practice of carrying 
comyjanies comiptly disregarded. 

If you Avant to drive business competition out of the field, bribe a 
railroad manager to raise the freights upon your rivals and lower your 
own, or take the whole board of directors into partnership with you, 
or promise to divide the spoils with the cor];)oration, and they will 
make you a monopoly with power to plunder, limited only by the 
range of your dealings. The loss thus inflicted upon the worthiest 
men in the land is startlingly large. By a single one of the=-e arrange- 
ments — that with the Standard Oil Company — the estimated injury. 



180 MISCELLANEOUS. 

direct and consequential, to honest persons within the State, amounts 
to not less tlian a hundred and fifty million dollars. For this fact 
you have the statement of Mr. Gowen, whose veracity no man that 
knows him will doubt, and whose faculties of observation, sharpened by 
a personal interest in the subject, make him a most intelligent wit- 
ness. 

At whatever place one of these railroad corporations has power to 
control the whole carrying-trade, or where several combine together for 
that purpose, they victimize the people remorselessly. I give you the 
example of York for the reason that it presses itself on my own atten- 
tion with peculiar force. The freight exacted on the single article of 
anthracite coal is nearly one dollar per ton more than is charged upon 
the same commodity carried from the same mine and delivered by the 
same company at Baltimore. In all reason and conscience it should 
be from fifty cents to a dollar less, seeing that the distance is sixty 
miles greater to Baltimore. That makes the discrimination against 
York at least equal to a dollar and a half on every ton. The quantity 
consumed in the latter place is something upward of a hundred thou- 
sand tons ; and the excessive tax upon it all is therefore one hundred 
and fifty thousand dollars. Every cent of this is as wrongfully taken 
as if it were feloniously stolen. It amounts to many times as much in 
the aggregate as all the legitimate taxes which the same community 
pay for the support of the State, county, schools, and almshouses. 
Nay, it is more than all the taxes imposed for those purposes on the 
whole of the great county in which the town of York is situated. A 
manufacturer there who uses two thousand tons of coal per annum 
must pay three thousand dollars of black-mail to the railroads, or to 
the monopoly which they have created, unless the influence of his 
wealth gets it remitted. But the largest part of it is levied upon poor 
laborers whose wages are barely sufficient to furnish their families, in 
scanty measure, with food, shelter, and clothing ; much of it is paid 
by the contributions of charity for those who would otherwise perish 
by cold and hunger. The man who can hear the simple story of this 
wrong without indignation must be as cold-blooded as a snake. 

You need not confine your sympathies to York. I can give you 
no exact account of the similar suffering inflicted on Philadelphia. 
But any officer of the Eeading Company can furnish it. Mr. Gowen, 
free spoken as he is about the sins of his rivals, is naturally reticent 
concerning his own. But if he opens his mouth he will tell you the 
truth ; and, unless I am much mistaken, it will be an awful tale of 
wrong and oppression. 

A full inquiry, if it shall ever be instituted, will probably show 
that nearly all the railroad corporations — the smaller ones following 
the example of the greater — have violated their charters by engagiug 
''in mining and manufacturing articles for transportation over their 



MISCELLANEOUS. " 181 

own works," and thus acquired a monopoly of the production as well 
as the carrying. It is in this way that the Eeading Company has got 
the coal-market of Philadelphia under its foot. Why should not that 
corporation and the others be made to respect the majesty of justice 
by an enforcement of the Constitution (Section 5, Article XVII), which, 
if it leaves them what they have already got in violation of law, will at 
least prevent or punish such outrages in the future ? 

The imperious necessity, however, of enforcing the Constitution 
arises out of the depredations which they commit upon all classes 
everywhere within the State, in what they call their local rates. You 
can take the figures known to be true and demonstrate by the plainest 
process of simple arithmetic that their tariff of rates for carrying 
goods from place to place within the State is extortionate beyond all 
reason. 

They have not the face to deny that their through rates are high 
enough to give them all the compensation they can reasonably demand 
for that part of their service. The trunk lines struggled and fought 
for that trade against one another with a fierceness which showed that 
they regarded it as very profitable. Their own competition reduced 
it for a while, but they combined and raised their charges high enough 
to satisfy all of them. It is ridiculous to say that this mutual agi'ee- 
ment fixed the rates below a fair standard. That is a sort of error 
which monopolists never commit. Accepting the almost unanimous 
testimony of disinterested persons who ought to know whereof they 
affirm, the belief is fully authorized that they have fixed their through 
rates unreasonably high ; but we will assume that they are only fair. 
That point being satisfactorily established, it follows, as the day follows 
the night, that the much higher rates which they charge on local 
freights are unjust and extortionate, a palpable violation of our rights, 
a gross offense against the Constitution. 

I use the word rate in the popular and legal sense, as meaning the 
ratio or proportion of the whole charge to the distance the freight is 
carried. Thus, if a ton be carried six hundred miles from Chicago to 
Philadelphia for five dollars, and the same charge be made for carrying 
it twelve miles from Philadelphia to Media, the rate in the latter case 
is fifty times as high as in the former. I am credibly informed that 
such disproportioned charges are or have recently been made, and that 
as a general rule all local freights, whether the haul be long or short, 
are charged, without regard to distance, the same, or nearly the same, 
that would be charged on the same weight if carried from Chicago to 
Boston. To the extent of this enormous discrimination against our 
own people they are robbed and plundered. 

The effect of it upon the agricultural interest can not be ascertained 
exactly without an investigation, which you can make, and I can not ; 
but the reasonable probability is that it takes most unjustly from seven 



182 MISCELLANEOUS. 

to ten cents per bushel from the price of all grain grown in the State, 
and correspondingly reduces the value of all other products. 

Then look how it touches the rights and interests of consumers in 
the great centers of population. Within a circle of one hundred and 
fifty miles in diameter around Philadelphia, provisions enough might 
be raised to feed the city ; but they can not be taken there without 
l)aying a freight on them as heavy as it would cost to bring them from 
Illinois or Wisconsin. Thus an army of a million souls, some of them 
half mad with hunger, virtually have their base of supplies moved back 
six or seven hundred miles away. 

Those railroad men have another way of cheating the public ; not 
for the benefit of their corporate treasuries, but to swell the private 
fortunes of the managers. A ring of them is formed into a separate 
transportation company, with the privilege of carrying on their own 
roads at the highest freights they can extort. By means of preferences 
and discriminations, the parent corporation forces into the hands of 
its bastard offspring as much of the business as it wants ; for the ship- 
per who refuses to patronize tlie ring must suffer the penalty of still 
higher rates as well as delay and difficulty. The Convention of 1873 
believed that this was one of the devices for fleecing the trade of the 
Commonwealth Avhich ought to be broken up, and the people adopted 
that opinion. Do you Avish to continue it ? If not, why do you hesi- 
tate to carry out the constitutional prohibition ? 

Perhaps the most remarkable, certainly the boldest thing about the 
discriminations we complain of, is that they are always avowedly made 
against those who are least able to endure the Avrong. A heavy grain- 
dealer in the West, who ships his millions, may get rates ninety per 
cent below those extorted from a Pennsylvania farmer, with only a 
thousand bushels to carry. Between all rivals of unequal fortune, the 
railway king is ever strong upon the stronger side, and never fails to 
make his discrimination against the weaker concern avIiosc business is 
conducted on the smaller scale. In my town of York the demand of 
some very rich manufacturers for lower rates has been conceded with 
gratifying promiitness ; but you might as well plead pity Avitli a wolf as 
ask the monopoly to relieve a starving laborer by taking the excessive 
charges off his bread and fuel. Indeed, if the tariffs of railway charges 
be founded in any rule at all it is this : That all rates shall be high in 
inverse proportion to the magnitude of the cargo and the distance it 
is carried ; the practical effect of which is to grind the face of the 
small trader that the great one may increase in fatness. 

The only argument they make against the equality of rates com- 
manded in the Constitution is that they can not afford it ; that they 
must charge higher for short hauls and light loads, or else their com- 
pensation will be less than for the greater service. If this were true, 
it would be no ground of justification. But, in point of fact, it is 



MISCELLANEOUS. 183 

wholly untrue. It is not more difficult or costly to carry a hundred 
tons for fifty sliippcrs than it would be to carry the same goods for 
one. The expenses incident to the reception and discharge of a cargo 
may be greater in i)roportion for short liauls than for long ones, but 
you can make that all even by allowing them to charge in addition to 
their mileage, for loading and unloading, whether the haul be short 
or long. These terminal expenses which they make so much ado 
about are nothing as an excuse for the enormous excesses of their local 
rates, and they know that very well. Their real reason is that they 
find it easier, safer, and more profitable to cheat a thousand poor men 
than one who is powerful enougli to resist them, or rich enough to 
bribe them. 

But they insist that they have a chartered right to do these things ; 
that they have purchased from tlie State the privilege of charging un- 
reasonable tolls, and making such discriminations as they think best 
for themselves without regard to justice ; that the State has sold out 
to them the power of protecting the people against any wrong of that 
kind which they may choose to commit, and that the Constitution 
which forbids them is itself unconstitutional, because it impairs the 
obligation of a contract. Let us see whether there be or not any truth 
in this plea. 

If the State had in express terms authorized them to impose un- 
reasonable tolls or taxes upon the people for the use of their own roads, 
the grant would be void. Judge Baldwin's opinion to that effect in 
Bonaparte vs. The Camden and Amboy Eailroad Company has never 
been denied or its soundness doubted from the day it was delivered to 
the present time. To give the corporation a power like tliat would 
be to give it the public highway as private property ; to arm a body 
of mere adventurers witli the police authority of the Commonwealth, 
and to convert railroad managers from public servants into public rob- 
bers. You might as well say that the Legislature could sell the State 
out and out. 

Upon the same principle a grant of authority to discriminate be- 
tween one citizen and another is worthless. The rights of all the peo- 
ple to bo protected against robbery and extortion are precisely equal, 
and the Legislature can not barter away one more than the rest ; that 
is to say, a wholesale bargain of that kind would be no worse than a 
contract to sell the rights of individual citizens at retail. 

If, therefore, these companies had a bargain with the State, ex- 
pressly giving them power to charge unreasonable or discriminating 
freights, it would be a mere nullity, and of course revocable at the will 
of the Legislature. 

But no such contract was ever made between this State and any 
railroad company ; at least, I never saw an act of incorporation upon 
which a decent pretense of that kind could be set up. 



184 MISCELLANEOUS. 

You must remember that in a public grant, whether of land, 
money, or franchises, nothing passes by construction ; the grantee at 
the very utmost gets only what is given in express words of which the 
sense is too plain to be misunderstood — nothing goes by inference — no 
ambiguous phrase carries with it anything to swell the dimensions of 
the gift. 

Now, where is the express grant of power to take more than a fair 
and reasonable toll for the use of any railroad ? In what act of incor- 
poration is it stipulated that the State may not adjust the tolls accord- 
ing to what she, by her projier authorities, shall deem a reasonable 
rule ? Tlie sole answer ever given to this is, that in some, if not all 
of the charters, there is a provision forhidding the company to make 
any charge beyond a certain rate per ton per mile, and from this pro- 
hibition against taking more they infer the right to take, in spite of 
the State, anything they please under that maximum, whether it be 
reasonable or not. But it is precisely such inferences that you can 
not make ; they are excluded by the rule of interpretation already 
mentioned. 

Neither docs their practice of discrimination find the slightest 
countenance in any word of the charters. When did you ever see an 
act of incorporation expressly declaring that the company shall have 
power to make a difference between two citizens whose legal and natu- 
ral rights to the use of the highway are precisely the same ? Where 
do you find the words which clothe any company with the awful power 
to crush out the business of one man with burdens which he can not 
bear, in order that another, in whicli the railroad has an interest, may 
be built up ? But especially and particularly I desire to know what 
part of any bargain with the State justifies the extortion of higher 
rates from a poor man, on his little freights, than from a rich one on 
his great and valuable cargoes ? If you can not put your finger on the 
very words that give this authority, then the authority is withheld 
and the practice forbidden. 

But that is not all. The limitation of the charges to rates, per- 
fectly and uniformly proportioned to weight and distance, must be 
apparent to any one who will consider the nature of the contract, the 
subject-matter of it, and the parties to it. The Commonwealth, re- 
serving the equal proprietary rights of all the people to the use of the 
highway, agrees to employ a corporation as her agent, to see that the 
exercise of the right by every citizen is properly facilitated, and never, 
in any case, impeded, delayed, or hindered. The agent agrees to do 
this service at rates which, in the aggregate, will be a reasonable com- 
pensation for all the labor and expense of it. As between the State, 
who is the employer, and the corporation, whicli is the employe, the 
contract is an entire one — a lump bargain — an agreement to do one 
whole job, which comprehends all the carrying for all the people on 



MISCELLANEOUS. 185 

that highway at a price for which the only measure furnished by the 
contract is weight and distance. Whenever, in those acts of incorpo- 
ration, any mention is made of rates, taxes, or tolls, they are spoken 
of as proportioned to the use made of the road by him who pays them — 
so much per ton per mile, whether the miles be many or few, up grade 
or down, without regard to the number of tons carried at one time, 
or at different times, for the same shipper. 

Let me illustrate a little further. If you make a contract to do a 
job of excavation at a price per cubic yard which gives you a heavy 
profit on the whole job, have you a legal right to demand additional 
pay for particular parts of it, which you allege to be harder than the 
rest ? I do not say what claim you might have upon the liberality of 
your employer if the bargain, taken altogether, were a losing one ; I 
only ask whether you could, by construction of the contract, charge 
more for one yard than another ? 

Take a case more precisely analogous. A contractor agrees to pave 
a mile of street at so much per foot, taxing the owners of the lots for 
the number of feet that front upon each one's property. Such con- 
tracts have been often made by the authorities of towns and cities, and 
they have never been understood to warrant a higher charge per foot 
against the owners of small and cheap lots than against the proprietors 
of those which are more valuable. 

Reasoning fairly from premises known to be true, you can not es- 
cape the conclusion that the extravagant and discriminating charges 
of these corporations are a fraud upon their own charters, as well as a 
gross wrong to their victims. The contracts they invoke to save them 
from the justice of the State are as strong against them as the Consti- 
tution itself. 

But there is a power of the State to control them, to check their 
rapacity, and to make them honest, which lies back of all this. The 
police authority, of which she can not disarm herself if she would, 
enables her to regulate the use, even of private property, in such man- 
ner that neither the general public nor particular individuals can be 
made to suffer by it unjustly. Upon that principle you can forbid an 
excessive rate of interest upon the loan of money, fix the charges of 
hack-driver3, or ferrymen, or tavern-keepers, or the owners of grain- 
elevators. 

Besides all that, the State can abolish a monopoly, or bring it to 
terms of justice, at any time, by virtue of her right of eminent domain. 
All property, corporeal and incorporeal, is held upon condition that it 
may be divested whenever the general interest requires it. All char- 
ters and acts of incorporation are subject to such modification as may 
be necessary to prevent the owners from doing wrong to the public. 
This principle was expressed in the Constitution by the amendment 
of 1856 ; but that was not its origin : it existed from time immemorial 



1 86 MISCELLANEO US. 

as a rule of public and universal law. It has always been one of the 
powers of every sovereign government, and it applies with equal force 
to all charters, whether dated before or after 1856. 

These are arguments in favor of the power. Except in Penns}^- 
vania, it would not be necessary to state them. Everywhere else the 
most zealous advocates of corporate monopoly concede the authority 
in question, while they deprecate its exercise. But here the shal- 
low notion still lingers that an act of incorporation is an irrevocable 
license to defraud and plunder whomsoever the managers please to se- 
lect as their prey. 

I have hesitated to speak of free tickets. I can understand how a 
thing so cheap might be accepted as a mere courtesy, like a drink or 
a dinner. Perhaps, therefore, it is not malum in se. But since 1874 
no man can hold office without taking an oath to obey the Constitu- 
tion, which expressly prohibits free passes. Can that oath be violated 
with a safe conscience ? I am a private citizen, and I speak with re- 
spect for the better judgment of others when I say that executive and 
judicial officers who have acted thus during the last ten years ought 
to be impeached and removed from their places. But that is easier 
said than done ; for the House of Representatives, which should prefer 
the impeachment, and the Senate, which has exclusive jurisdiction to 
try it, are tarred nearly all over with the same stick. 

The legal predicament in which this practice places the railroad 
officers is somewhat worse. The passes which they distribute are 
things of considerable value ; worth, perhaps, two or three hundred 
dollars apiece, and hundreds of thousands altogether. If the agents 
of the company would bring up that much money in a bag, at tlie 
first meeting of every Legislature, and hand it around to the members, 
dishing out their shares to the judges and executive officers, it would 
look very much like wholesale bribery. But to bribe an officer it is not 
necessary that money should be used. Giving or offering " anything 
of value, testimonial, privilege, or personal advantage," is, by the Con- 
stitution and the statute, the same crime as giving silver dollars, gold 
eagles, or greenbacks. It must appear, however, that it was given to 
iT^uence the officer or member of the General Assembly in the perform- 
ance of his public or official duties. That is undoubtedly the very pur- 
pose and object of giving passes to members of the Legislature. I do 
not say or tliink that those Senators and Representatives who receive 
them consent to be so influenced. But that does not redeem the guilt 
of the giver, to whom it is impossible to ascribe any other intent than the 
criminal one. Those great corporate officers and their respectable sub- 
ordinates, who are concerned directly and indirectly in these practices, 
are probably ignorant of the existing law. They ought to be solemnly 
warned by some penal enactment directly and exclusively aimed at this 
besetting sin. 



MISCELLANEOUS. 187 

We are often told that in this struggle for honest government 
against the power of the railroad corporations the just cause has no 
chance of success. We do seem to be out on a forlorn hope. Tue 
little finger of monopoly is thicker than the loins of the law. 

The influence of our enemies over the Legislature is mysterious, 
incalculable, and strong enough to make the Constitution a dead 
letter in spite of oaths to obey it, and a popular demand, almost uni- 
versal, to enforce it. There is no other subject upon which the press 
is so shy as upon this, the most important of all. Afraid to oppose 
the corrupt corporations, and ashamed to defend them, it sinks into' 
silent neutrality. Prudent politicians always want a smooth road to 
run on, and the right path here is full of impediments. In this state 
of things we seem to be weaker than we really are ; for the unbroken 
heart of the people is on the side of justice, equality, and truth. Mo- 
nopolists may sneer at our blundering leadership and the unorganized 
condition of our common file, but they had better bethink them that, 
when the worst comes to the worst, our raw militia is numerous enough 
to overwhelm their regulars, well paid and well drilled as they are. 
They have destroyed the business of hundreds for one that they have 
favored. For every millionaire they have made ten thousand paupers, 
and the injured parties lack no gall to make oppression bitter. 

The people, certainly, got one immense advantage over the carry- 
ing corporations when they adopted the seventeenth article of the 
Constitution. That concedes to us all the rights we ask, puts the flag 
of the Commonwealth into our hands, and consecrates our warfare. 
The malign influence that heretofore has palsied the legislative arm can 
not last forever. We will continue to elect rei^resentatives again and 
again, and every man shall swear upon the gospel of God that he will 
do us the full and perfect justice which the Constitution commands. 
At last we will rouse the " conscience of a majority, screw their cour- 
age to the stickiug-place, and get the appropriate legislation " which 
we need so sorely. 

Whenever a majority in both Houses become independent enough 
to throw off the chains which now bind them to the service of mo- 
nopoly — when frequent repetitions of the oath to obey the Constitu- 
tion shall impress its obligation ujjon their hearts — when admonition 
and reproof from within and without — " line upon line, precept upon 
precept, here a little and there a little," shall have taught them that 
fidelity to the rights of the jieople is a higher virtue than subserviency 
to the mere interests of a corrupt corporation — when the seventeenth 
article shall have been read and reread in their hearing often enough 
to make them understand the imjiort of its plain and simple word^s — 
then, without further delay and with no more paltry excuses, they 
will give us legislation appropriate, just, and effective. A tolerably 
clear perception of their duty, coupled with a sincere desire to do; it, 
13 



1 88 MISCELLANEO US. 

will enable them to catch the shortest and the easiest way. All trifling 
with the subject will cease at once ; all modes of evading this great 
point will go out of fashion ; no contrivance will be resorted to of 
ways not to do it while professing to be in favor of it ; our common 
sense will not be insulted by the offer of a civil remedy to each indi- 
vidual for public offenses which affect tlie whole body of the people 
and diminish the security of all men's rights at once. The legislative 
vision, relieved from the moral strabismus which makes it crooked 
now, will see straight through the folly of trying to correct the gen- 
eral evil except by the one appropriate means of regular punishment 
at the suit of the State. Does this seem harsh ? Certainly not more 
severe than any other criminal law on our statute-book which applies 
to railway m.anagers as well as to everybody else. They need not suffer 
the penalty unless they commit the crime ; and they will not commit 
the crime if you make a just penalty the legal consequence. Pass a 
proper law to-day, and they will be as honest as you are to-morrow. 
Every one of them can be trusted to keep clear of acts which may 
take him to tlie penitentiary. They have been guilty in their past 
lives, and will continue in evil-doing for some time to come, because 
the present state of your laws assures them that they shall "go un- 
whipped of justice." But threaten them with a moderate term of 
imprisonment and a reasonable fine, and they will no more rob a ship- 
per on the railroad than they will pick your pocket at a prayer-meet- 
ing. Your law will do its work without a single prosecution. Thus 
you could, if you would, effect a perfect reform, and yet not hurt a 
hair on any head — " a consummation most devoutly to be wished." 

But it is not to be expected that such good will come immediately. 
Nearly ten years ago the Legislature was commanded to carry out the 
beneficent measure of the Constitution. For nine years that illus- 
trious body was a dumb impediment to the course of justice — all its 
faculties paralyzed by some inscrutable influence — dead — devoid of 
sense and motion, as if its only function was to " lie in cold abstrac- 
tion and to rot." At last, when it was wakened up by the present 
Governor and reminded of the seventeenth article, it opened its 
mouth and spoke as one who did not know whether he was sworn to 
oppose the Constitution or to obey it. Some members have shown 
their utter hostility to it, some seem willing to defend small portions 
of it, and one Senator discovered that it was all equally sacred. But 
his plan meets no favor. Still, we need not despair. The people and 
the Constitution, mutually supporting one another, will be triumphant 
yet. Meanwhile let all the railroad rings rejoice. This is their day; 
ours is to come. 



EULOGIES. 



OK THE LIFE AND CHARACTER OF GENERAL ANDREW 
JACKSON, DELIVERED AT BEDFORD, PENNSYLVANIA, 
JULY 28, 1845. 

Fellow-Citizexs : We have met to pay our tribute of respect and 
admiration to the memory of the man who has, for nearly fifty years, 
filled a large space in the public eye, and whose character, for the last 
thirty years, has been the almost constant subject of discussion by 
this whole nation. His friends constituted a very large majority of 
the people, and on their lips his name was the most familiar topic of 
applause. In their eyes he was mighty in word and in deed. If he 
addressed their understandings, they were convinced by what they 
deemed his unanswerable reasoning ; if he spoke to their hearts, their 
affections gushed forth in overflowing gratitude and veneration. In 
civil and in military life he was, alike and at all times, " the hero 
they loved and the chief they admired." 

This devoted attachment was, however, not universal. A large 
minority, not only respectable by its numbers, but formidable by the 
talents, the moral influence, and the social dignity of its members, 
had a far different opinion of his character. By them his qualifica- 
tions as a statesman were derided ; and, though his military services 
were not denied, his opponents were not always unwilling to depre- 
ciate the value even of them. 

The discussion was bitter enough while it lasted — too bitter, per- 
haps, for the credit of those engaged in it. But death, if it has not 
closed the controversy, has at least softened the tone in which it is to be 
conducted. The king of terrors is merciful as well as severe. When 
he strikes a great man to the earth, he interposes between him and 
his enemies the most effective shield his character can have. Human 
nature recoils from an effort to disturb the ashes of the departed, and 
shrinks from any attempt to continue a war against the spirit which 
has already rendered its final account to the Great Judge. When the 
career of a public man is once closed forever, his opponents review 



J 90 EULOGIES. 

their old opinions with candor, the indifferent become interested, and 
hearts that were cold and hardened are moved, at last, to "the late 
remorse of love." Men whose position in society or whose relations 
to the public compelled them to be neutral in his lifetime, are re- 
leased by his death from the obligation of silence, and may vindicate 
him if they will as freely as others. 

But there is a measure of justice even for the dead. Truth is not 
less important, when the grave has closed over the jierson to whom 
it relates, than it was when he lived and moved among us. The 
majesty of death, though it awes partisan malignity into silence, com- 
mands the voice of history to speak and the world to listen to its 
truths ; and no matter whether its judgment be favorable or adverse, 
the tribunal is too august to be trifled with, and its decrees must be 
submitted to. 

In the case of the man upon whose character you, as a part of his 
countrymen, are now sitting in judgment, we ask nothing but patience 
and candor. We make no claim to your sympathies, on the mere 
ground of reverence for the dead. We are indeed most anxious 
that the good he has done should live after him, but we do not de- 
mand that the evil should be interred with his bones. In dealing 
with his memory there is no middle way. He himself was not a half- 
way man. If he was really unprincipled and bad, he was the very 
worst man his country ever produced— ruay, he was almost a demon 
— and his memory should be clothed with infamy as with a garment. 
But if the opinions of his friends be correct, I know not the man 
on earth whose eloquence is strong enough to speak his eulogy — 
there can scarcely be a limit to the admiration which is due to him. 
The timid or the false friend, who would "damn him with faint 
praise," is only a little better than the enemy who would blacken him 
with defamation. 

Taking as I do the better (and I trust the truer) view of his char- 
acter, I can say, with the most perfect conviction of its truth, that 
Andkew JACKSOli is entitled to stand higher on the list of iiublic 
benefactors than any other man of his time — that he was a soldier un- 
rivaled for skill and intrepidity, a patriot pure and faithful, and a 
statesman uniting the greatest and best qualities of a republican ruler. 

If these propositions be true, they ought to be proved — and when 
proved, they ought to be admitted by those who may now be disj)osed 
to deny them. It is time the vexed question were settled. The great 
cause of human liberty suffers by every moment of delay. If it be 
true that the man whom an immense majority of the American peo- 
ple believed to be honest and wise, was merely a headlong tyrant, 
ignorant, reckless, overbearing, and unprincipled, then is that peo- 
ple wholly incapable of self-government. If they not only gave up 
the helm of their republic into the hands of a most unworthy man. 



EULOGIES. 191 

but praised him when his insane ambition trampled on their rights, 
and afterward solemnly approved all his mad pranks, then they have 
neither the spirit nor the intelligence of freemen. In that case their 
consummate folly admits no prospect of a cure. The bubble of repub- 
licanism has burst ; the experiment has failed ; and our final hope for 
the cause of liberal principles must be converted into flat despair. 
In vindicating the name of Jackson, therefore, from whatever of mis- 
construction it may have suffered, we are serving the greatest and 
most elevated of all human purposes — the advancement of civil and 
religious liberty. Every one should be rejoiced to see such a man 
take his true position in tlie history of his country ; and I have far 
overestimated the magnanimity of that great party who thought it 
their political duty to oppose him, if they should not be as glad as 
others to see Justice done to his name ; and that for their own sake 
as well as for his. 

Upon such a character as Jackson's, declamation would be out of 
place. A pompous panegyric, "full of sound and fury signifying 
nothing," may be required to cover the defects of others ; but he needs 
it not. The highest possible praise we can bestow on him will be to 
recount a few of the prominent events of his life in the plain style of 
simple narration. We must necessarily deal in dry matters of fact, and 
I give you notice that I intend to be as dull and tedious as the pur- 
pose I have in view requires that I should be. 

Andrew Jackson had his birth in one of the back settlements of 
South Carolina some nine or ten years before the Declaration of Inde- 
pendence. Of his father little seems to be known, but his mother, 
who became a widow when he was tAvo years old, must have been a 
most remarkable woman. When the tide of war rolled toward her 
neighborhood, with the devotedness of a Spartan mother, she sent out 
her three sons (all the children she had) to fight for their country. 
Even her youngest boy, not fourteen years of age, whose affectionate 
nature and quick intellect had made him the pride of her heart — even 
him she took away from the scliool where she was educating him for 
the ministry, and when his bright eye kindled with indignation at the 
story of his country's wrongs, she put the war-harness on his young 
limbs and told him to go forth and strike for the oppressed. Her 
eldest son fell at Stono. The two survivors were present at the battle 
of the Hanging Eock, and were taken prisoners after the defeat. By 
her energy and influence an exchange was effected, and she brought 
them home from Camden, wasted with disease and gashed with 
wounds. One of them reached home only in time to die there, and 
the other recovered as by a miracle. But before he was altogether 
well, his mother left the bedside of her youngest, her favorite and now 
her only child, to go on another errand of mercy — to convey some 
comforts and necessaries to the poor prisoners at Charleston, who were 



192 EULOGIES. 

suffering there, as her sons had suffered at Camden, by cruelty and 
want. While there, she took the fever of the prison and died on her 
way home. She was a Christian and a heroine, and she died a martyr 
to the kindness of her own heart. No monument perpetuates her vir- 
tues, but her memory lives in the deathless fame of her son ; and if a 
column were raised above her grave, high enough to pierce the clouds, 
no greater praise could be inscribed on it than this : that she was 
"WOKTHY to he the mother of Andreiu Jachson. 

When that young man arose from his bed — the only survivor of his 
family — he had time to count how much the independence of his 
country had cost him. Others Avere in a condition to serve the cause 
more effectually, but no one suffered more deeply than himself. He 
had seen his neighbors and friends slaughtered and hanged Avitli 
shameless, cold-blooded cruelty, and their property pillaged, by an 
enemy calling himself civilized. His brothers had fallen in the strife, 
and his more than heroic mother had met her death in an effort to 
relieve the victims of oppression. The tyrants had not left him a 
relative on earth — "not a drop of his blood flowed in the veins of any 
living creature " — and in his own person he had endured captivity, 
and blows, and insults. No wonder that his high spirit, so sensitive 
to wrong and injury, should have hated tyranny, all his life afterward, 
with a deadly hatred — no wonder that his fervent nature became 
wedded forever with a love unchangeable to the liberty for which lie 
had paid so dear a price. 

After the peace, he worked a while at the trade of a saddler, then 
resumed his literary pursuits, completed his education, read law, was 
admitted to the bar, and soon afterward removed to Nashville. 

The commencement of his practice is worth remembering. Nash- 
ville was settled by adventurers from every quarter — some of them 
scarcely as honest as they should have been — and the restraints of an 
organized society not being on them, they defied justice. Neither 
property nor life was secure. A number of these desperate men had 
gone largely in debt to the merchants and tradesmen of the place, and, 
having no fear of law before their eyes, had come to the resolution to 
repudiate their contracts. They had already secured all the profes- 
sional assistance there, and as soon as Jackson arrived they offered to 
retain him also. He ascertained that tliey had no honest defense, and 
with a generous and manly scorn he put back their fees and scouted 
them from his presence. They tried to intimidate him, by threats of 
personal vengeance, from being concerned against them ; but they 
found him as fearless as he was honest. He accepted the retainer of 
the creditors, and issued seventy writs the next day. Justice was 
triumphant, as it always was when he saw to its execution ; and from 
that day Tennessee dates the supremacy of law and order within her 
boundaries. 



' EULOGIES. 193 

His professional course, thus nobly begun, was worthily sustained. 
His talents, integrity, and keen appreciation of whatever was just, and 
his utter hatred of knavery in all its forms, soon won him the un- 
bounded confidence of all good men and conquered the respect even 
of the bad. He was appointed Attorney-General of the Territory ; and 
when Tennessee was ready to come into the Union, he was elected a 
member of the convention to form a Constitution. His intimate 
knowledge of and warm attachment for the broad principles of demo- 
cratic liberty made him tlie observed of all observers in the conven- 
tion. The Constitution framed by that body, with its liberal and 
comprehensive bill of rights, its careful separation of powers, and espe- 
cially by its strong denunciation of monopolies, bears the full impress 
of his vigorous mind. 

For his services in laying the foundation of their government, the 
people were thoroughly grateful, and they showed it by electing him 
to the highest office in their gift for which he was eligible. He was 
under the constitutional age of a Senator, and the new State had but 
one Representative in Congress. To this latter post they elected him 
unanimously. 

During his service in Congress an incident occurred which ought 
to be mentioned, not merely because it was honorable to Jackson, but 
because his enemies have made it the subject of some railing accusa- 
tions. General Washington's presidential term was drawing to a close, 
and he was about retiring from public life. A resolution Was proposed, 
expressing the warmest affection for him, and great regret for the 
necessity of losing his services. To this part all were willing to assent. 
In that shape it would have passed unanimously ; and, if there was one 
man in the House who loved Washington better than another, it was 
the young member from Tennessee. But the Federal or Anti-republi- 
can party determined to make some capital for themselves, and having 
a majority in the House, they so framed the resolve as to make it 
express their approbation of all the measures taken by his Cabinet. 
The pernicious funding system of Hamilton and the National Bank, 
chartered in 1791, on the recommendation of the same officer, reeking 
as both were with corruption, were to be indorsed with the rest. All 
motions to amend were promptly rejected, and the minority were 
given to understand that they must either say by their votes that they 
approved the obnoxious policy of Adams, Hamilton, and Knox, or else 
submit to the popular odium of appearing to oppose the greatest and 
best man that ever lived. The trick succeeded with nearly all ; but 
there were two disciples of Jefferson there who had the moral courage 
to vote in the negative. I need not tell you that one of them was 
Andrew Jackson ; for his moral courage never failed him. The other 
was Edward Livingston, his bosom friend throughout the most trying 
scenes of his subsequent life. 



194 EULOGIES. " 

When he was barely the constitutional age he was elected to the 
Senate of the United States without solicitation and without opposi- 
tion. He resigned his seat in that body before the close of the first 
session. He was thoi*e, however, long enough to show his devotion to 
sound principles by opposing the alien and sedition laws. 

He was drawn from his retirement soon afterward by an appoint- 
ment as Judge of the Supreme Court of his State. He was then but 
thirty-one years old, and is perhaps the only instance in this country 
of any man having reached so high a judicial station at a period of life 
so early. The office of a judge is not a place where shining talents 
can be made conspicuous ; the bench is no place for brilliant displays ; 
the utmost distinction its occupant can properly aim at, is the nega- 
tive praise of having done no wrong. He kept the ermine unspotted, 
and no one but himself ever doubted his abilities. Long afterward, 
his most bitter political opponents, in recommending a man for the 
presidency who had sat upon the same bench, could think of no higher 
praise to bestow on the judicial character of their favorite than to say 
that his legal opinions were as sound and as able as those of Jackson. 
When he proposed to resign, the members of the Legislature addressed 
to him an earnest remonstrance, demanding of him, in the name of 
their common country, that his great powers of thought and independ- 
ence of mind (I use their own language) should not be lost in retire- 
ment. At their request he held the office for six years. His resigna- 
tion, when it did take place, was regretted by all, except those who 
were connected with an association of land-jobbers ; and he had the 
honor to incur their enmity by exposing their frauds. 

\\\ February, 1812, Congress authorized the President to accept 
the service of fifty thousand volunteers. Twenty-five hundred Ten- 
nessceans agreed to volunteer, if Jackson would command them. He 
placed himself at their head and marched them to Natchez. There he 
was met by an order from the Government to dismiss his men at once, 
and deliver all his stores and public property to General Wilkinson. 
The result of his literal obedience would have been to send his troops 
home a distance of more than five hundred miles unorganized, un- 
armed, and unsupplied with provisions, through a howling wilderness, 
inhabited only by hostile Indians, without even a means of conveyance 
for the sick. He refused, of course. He tooTc the responsibility. He 
delivered such stores as would not be absolutely needed on the way, 
marched his men back to Nashville, and discharged them thei-e. The 
War Department afterward approved his conduct in not executing 
literally that improvident order. 

In a few months after this, the whole population of Tennessee were 
stricken with horror by the intelligence from Fort Mimms, of the 
most ferocious massacre, the bloodiest and most relentless butchery 
recorded even in the annals of savage warfare. The Indians, instigated 



EULOGIES. 195 

by the British, had surprised the station and murdered men, women, 
and children indiscriminately. Similar atrocities were daily expected 
on other frontier settlements. In this extremity every eye was turned 
upon Jackson ; the hearts of the people would know no other leader. 
It happened that he was then conlined to his bed with a broken limb. 
The Clovcrnor and a deinitation of the Legislature went to his residence 
and told him of the demand for his services. His reply was : "All 
that is left of me belongs to my country, and in two weeks I shall be 
on horseback, if there is a spark of life in my body. In the mean 
time, raise the standard at Fayetteville, and let every man that can 
strike a blow gather around it." They told him the treasury was 
empty, and they had no means of equipping an army. lUit he had, 
not long before, converted a })ortion of his property into cash, and 
had, at the time, seven thousand dollars on deposit at Nashville ; that 
sum he directed the Governor to use in the purchase of provisions and 
arms. Ilis fortune, as well as his life, was at the public disposal. 

He took the field according to promise, and then commenced that 
career of magnificent victories which made his name immortal. He 
pushed into the heart of the enemy's country with a celerity of march 
which Ca3sar could not have outstripped, exerted a vigilance that Fa- 
bius never exceeded, encountered dilTiculties that Hannibal might 
have been i)roud to overcome, and met his foes in battle Avith an im- 
petuous courage that would have done honor to the personal prowess 
of Alexander. 

I will not weary you with a detail of his military operations. The 
victorious battles of Emuckfaw, Talladega, and the Horseshoe, are 
not forgotten, and they never will be. Let no one suppose that these 
victories were won by the force of superior numbers and discipline 
over a weak and barbarous enemy. The enemy were savages, it is 
true, but altogether they outnumbered the troops under Jackson, they 
were well armed and provided, (hey were thoroughly acquainted with 
the country, they had ample scope for their characteristic cunning and 
treachery, they were led by the most distinguished braves of their re- 
spective nations, they were united and organized by the skill of Te- 
cumseh, and their fierce passions were roused to madness by his fiery 
eloquence. Never since America was discovered have the red men 
mustered in more formidable force against the whites, never did their 
bloodthirsty nature impel them to deeds of greater cruelty, and never 
did they receive such a terrible scourging for their crimes. 

But Jackson met other obstacles, such as could not have been sur- 
mounted by any man but himself. He had counted on the co-opera- 
tion of some troops belonging to another division : the officer who 
commanded them refused to join him, or even to protect the posts in 
his rear. He moved on, notwithstanding. The provisions purchased 
with his own money were exhausted, and the State failed to supply 



196 EULOGIES. 

him with more, lie was undismayed even by the prospect of famine. 
Almost in the presence of the enemy, a mutiny broke out among the 
militia, who claimed their discharge, and left the camp in a body. The 
general drew up the volunteers across the road and met the rebellious 
troops with fixed bayonets and muskets loaded. They knew they had 
to deal with a man who never threatened in vain, and they returned 
submissively to their quarters. The ringleaders were tried, con- 
demned, and executed. By his seasonable and just severity, as well as 
by his singular address in allaying their fears and exciting their hoi^es, 
he extinguished every sign of discontent, and, in less than twelve 
hours, they were more attached to their commander than ever. But 
this change of sentiment in the militia was unknown to the volunteers. 
During the night, the spirit of insubordination began to pervade them 
too, and, supposing that no force could be found to prevent tlieir de- 
parture, they started next morning for home. Their astonishment 
may be guessed at when they found the militia drawn up on the same 
spot which they themselves had occupied the day before, in the same 
attitude, and headed by the same unshrinking spirit. They could do 
nothing but j)romise submission and beg for mercy. The Governor of 
Tennessee, hearing of these things, unable to furnish the provisions, 
and despairing of Jackson's success in a condition so utterly forlorn, 
directed him to abandon the expedition and commence a retreat. He 
answered that he could do anything but turn his back on the enemies 
of his country, but if he ever did that, it would only be to lure them 
into a battle. All this while his men were literally starving ; the 
general's own table was served with but a single dish, and that was 
acorns. They implored his permission to go home, and he promised 
that, if they would remain with him only two days longer, and if no 
provisions could be had in that time, he would make no further oppo- 
sition to their return. The time having expired, and his word being 
pledged, he could no longer forbid their going. But he told them that 
if only two men of all his army would remain, he himself would stay 
and die on the ground. One hundred and twenty-five volunteered to 
stay, and with them he determined to maintain his position. The rest 
took up their homeward march, but had scarcely gone before the long- 
expected supplies came in. The general pursued and overtook them ; 
but when he ordered them to return, they declared their unanimous 
resolution to disobey him. Here, then, was another mutiny — not in 
half his army, but the whole of it — one that he was obliged to deal 
with alone, and on the instant. He placed himself in front, and de- 
clared that, if they proceeded farther, it must be over his dead body. 
By way of showing that his life would be dearly sold, he unslung a 
carbine from his shoulder and announced his determination to shoot 
the first man who advanced a step. The muskets along the line were 
leveled at his breast ; one only was' fired, and the bullet whistled ovei 



EULOGIES. 197 

his head. He sat iu his saddle unmoved. " Return," said he, '^ to 
your duty, or take tlie life of your general ; you have your choice." 
Overawed by his undaunted boldness, and struck with admiration at 
his noble bearing, they felt their old affections revive in full force. 
They wavered a moment, then grounded their arms, and told him that 
wherever he would lead they were ready to follow. It was with these 
same troops, and after all these occurrences, that he made that gallant 
fight at Enotochopco, gained the decisive victory at Emuckfaw, and 
won the bloody day at Tohopeka. 

Tlie next year was the defense of Fort Bowyer — the taking of Pen- 
sacola — and, in the latter part of it, some preparations for the battle 
of New Orleans. 

If there be one point or period in his history which needs no com- 
ment at all, it is that which relates to the latter achievement. The 
American people understand the debt of gratitude they incurred that 
day, and their children have all its history by heart. The finest army 
that ever landed on American soil ; thoroughly equipped ; trained 
for years under the eye of Wellington ; composed of veterans, who had 
met the conqueror of Europe and driven his legions back ; who had 
crimsoned the waters of the Douro with the blood of their enemies ; 
who had tasted plunder at the storming of Badajoz ; who had reveled 
in licentiousness at St. Sebastian, and whose mercenary valor was here 
again to be rewarded with '' beauty and booty " — against such a force, 
more than fourteen thousand strong, Jackson, with half the number 
of raw levies, was to defend the richest city of the Union, which, if 
taken, would have given to the enemy the command of the Mississip]ii 
and the whole West from the Gulf of Mexico to the heart of Pennsyl- 
vania. And that city was not a Gibraltar or a Quebec — it had no 
natural advantages of position — no military works — no wall — no 

"... high-raised battlement, 
Strong tower, or moated gate." 

It was situated on an open plain, with a hundred inlets to be guarded, 
and all means of defense were yet to be created by the genius and en- 
ergy of its defender. No wonder the Legislature of Louisiana were 
in favor of surrendering the city, instead of making a stand for its 
defense under circumstances which seemed so entirely hopeless. 

But, in Jackson's vocabulary the word surrender was never found. 
The foremost division of the enemy was scarcely within striking dis- 
tance when he was upon them. His effective force at that time was 
hardly fifteen hundred men. But they were men who knew their 
leader, and whose hearts were filled with a portion of his own spirit. 
With that little band he attacked a camp guarded by seven thousand of 
an army that called and believed itself invincible. The bloody fight 



198 EULOGIES. 

that ensued, indecisive as it was, would stand among the proudest 
achievements of American arms, if its brilliancy had not been dimmed 
by the great battle which closed the war ; and if the eighth of January 
could be stricken from the calendar, the twenty-third of December 
would be celebrated forever. But the eighth of January did come, 
and with it the sun of Jackson's military glory rose to its zenith. He 
was everywhere hailed as the great deliverer of the country. Grati- 
tude and joy welled forth from the popular heart as from a fountain, 
and when the sage of Monticello invoked " honor " upon him who had 
filled the measure of his country's glory and fame, the sentiment was 
heard and responded to from one end of the Union to the other. Con- 
sider what he had to do, and how he did it, and then let your own 
hearts tell you which Avas right, the people who met him with accla- 
mations of joy and delight, or the judge who fined him a thousand 
dollars. 

I will not pause upon the minor incidents of that great event, nor 
stop to defend his proclamation of martial law. The nation's judg- 
ment on this part of his conduct has been given in more forms than 
one. The far-famed Seminole campaign must be passed in silence. 
His triumphant vindication of himself from the charges growing out 
of his service during that expedition will be remembered by his friends, 
and I hope his opponents may never forget it. Time would fail us, if 
we should recount the scenes through which he passed, from the close 
of his military career to the commencement of his first presidential 
term. Admiration would, indeed, love to linger on his thorough vin- 
dication of justice as Governor of Florida, on his manly bearing when 
the people named him as their candidate for the highest station in the 
world, as well as on his dignified submission, when he saw another 
placed in the great office which the affectionate gratitude of the people 
had designated as the reward of liis own services. 

When finally he was placed at the head of the republic, not only 
by the will of the people, but according to the forms of the Constitu- 
tion, he showed the world, whose gaze was on him, that he was not a 
mere '' military chieftain." The courage, which never cowered before 
an enemy, was indeed there ; the iron will, the fiery soul, the heart of 
steel, and the nerve of adamant, were with him still. But there also 
was the comprehensive intellect, the rapid power of combination, the 
intuitive perception of whatever was noble or good — above all, there 
was still the enthusiastic patriotism, which dedicated his whole being 
to the country that he loved — loved with all his fervor of devotion. 

When the Maysville Eoad Bill passed both Houses of Congress by 
immense majorities, developing a system at war with the Constitution, 
but in perfect keeping with the wild spirit of speculation and reckless 
expenditure which afterward swept so many of the States to financial 
ruin, it was his sagacity that saw the distant danger, and his firmness 



EULOGIES. 199 

that applied the remedy. He crushed without hesitation a measure 
which had the support of all parties. No truckling to popular errors ; 
no wooing of powerful interests ; no base appeal to the sordid passions ; 
no baiting of traps to catch the favor of the people, ever disgraced his 
manly statesmanship. He was as ready to stem the torrent when it 
was wrong, as to swim with the tide when it set in the true direction. 
Upon this part of his history, time and reflection have put all right, 
and the only thing now left to excite our special wonder is, that oth- 
ers, who passed for wise men in their day and generation, should not 
have seen the subject in.as true a light as he did. 

Nullification reared its head — the Union was to be severed, because 
one of the States was displeased with a law. Jackson was at his post. 
He never stopped to parley witli the danger, or to bandy words with 
the wrong-doers. He spoke not in the language of expostulation, ad- 
vice, or entreaty, but in the decisive and unequivocal tone of one who 
knew that it was his duty and his right to command. " The Union," 
said he, "must and it shall be preserved" ; and from that moment 
nullification was doomed. 

But another foe, more deadly and dangerous than any he had yet 
encountered, was still to be grappled with. A great corporation with 
a capital of thirty-five millions of dollars ; wielding debts to the 
amount of seventy millions, against men of all classes, professions, 
and grades ; intimately connected with all the ramifications of private 
business ; and holding the public funds of the Government in its cus- 
tody — demanded his signature to a new charter. He knew that the 
corporators had misbehaved themselves grossly — how grossly I shall 
not stop to tell — and he made no compromise with wrong. In the 
Constitution he had sworn to preserve, protect, and defend, he found 
no warrant for such a law ; and he kept his oath. But his veto was 
scarcely read, before the bank bounded into the arena, armed to the 
teeth, and followed by a host of friends. To cripple her power and 
save the country from loss, he removed the public deposits, a measure 
which cooled many of his friends, while it fairly infuriated his ene- 
mies. The combat deepened every hour. To an eye unable to pene- 
trate the sources of his influence, it seemed that he was about to be 
crushed at last. The bank suddenly withdrew her discounts, curtailed 
her circulation, pressed her debtors to the wall ; and the consequence 
was, that formal committees, from every part of the Union, waited on 
the President, by thousands, with bitter complaints of the distress 
which they had been taught to believe was brought upon the country 
by him. Two thirds of the presses, three fourths of the orators and 
writers of the nation were exerting all their powers of invective, argu- 
ment, and ridicule to bring contempt and hatred upon his character. 
The Senate, containing *'the garnered talent of the nation " — the tri- 
bunal to which he had a right to look for a calm decision, for they 



200 EULOGIES. 

were his judges in the last resort — accused and convicted him without 
a hearing. Physical force began to be talked of, anonymous letters 
warned liini that assassins were watching for his life ; ''armed com- 
mittees of ten thousand "were proposed ; an " encampment upon Capi- 
tol nill"was threatened ; and " a revolution, Z»?oof?Zei'S as yet,'^ avus 
announced to the public on the highest authority. 

In all this storm of passionate declamation — amid this "loud roar 
of foaming calumny " — his firm soul never blenched even for an in- 
stant. He changed no principle, he retracted no opinion, he surren- 
dered no truth, he gave up not one inch of the high ground he had 
taken. In this the sorest trial his faith had ever endured, "he bated 
no jot of heart or hojie," but kept right onward in the path of his 
duty. The test was too severe for his summer friends, and they fell 
away from his sui)port by scores and hundreds ; but he was 

"... constant as tho northern star, 
Of whoso trne, fixed, and resting quality 
There is no fellow in the firmament." 

The electric chain of communication between him and the people 
was still unbroken, and whatever link of that chain was struck by his 
master-hand, the response was a deep thrill of sympathy from the 
hearts of the million. His steady and fearless voice was heard tlirough 
his messages, above the din of the conflict, and it went over the land 
like the tones of a trumpet, ringing full on the car, banishing doubt, 
inspiring confidence, and swelling the heart with a foretaste of victory. 
His friends, who had doubted his wisdom, began to wonder at their 
own want of discernment, and the great old chief, who had led them 
through so many contests, was proved to be right once more. 

He was followed to his retirement by a warmth of popular affec- 
tion which had never been bestowed on any but one man before. Ilis 
declining years were surrounded with all 

" Those things that should accompany old age 
As honor, love, obedience, troops of friends." 

He lived long enough to see his most cherished hopes accomplished — 
his principles stamped upon the public mind — his own example made 
the standard of political orthodoxy. He saw the people rejudge the 
judgment of his adversaries, and expunge their sentence of condem- 
nation from the record. He beheld the nation rising as one man and 
tendering to him a restitution of the fine imposed on him for saving 
the country. 

He had fulfilled all the purposes of his mission to the earth ; he 
had finished the work which God had given him to do ; and it was 
his time to die — time that his great spirit should be freed from the 



EULOGIES. 201 

fretting cluiin wliicli bound it to the lower world — time that his labors 
should cease and his hallowed rest begin. He closed his long list of 
triumi)hs with tlie crowning triumph of the Christian's hope, and 
ended his conquering career by another conquest, which robbed the 
grave of its victory, and took the sting from death. 

All that is mortal of Jackson has died. But his fame lives and 
will live forever. America will never forget her defender, the people 
will never fail tp think with gratitude of their truest friend, the 
human race will never cease to i)ay the homage of i)rofound admira- 
tion to the benefactor of the world. 

In the character of a private gentleman, no man of his time was 
more admired by those who knew him than General Jackson. All, 
who have ever seen him, concur in bearing testimony to the charms 
of his manner and the courtly grace of his deportment. This was not 
the result of an artificial polish ; his politeness flowed naturally from 
a kind, true heart. 

In all the relations of life he was sternly and inflexibly honest. No 
broken covenants, no violated obligations, rested on his conscience. 
When yet a comparatively young man, and before his fame became, as 
it afterward was, the public property of the nation, the misconduct of 
one whom he had trusted, made him, not legally, but as he thought 
morally, liable for an amount of debts equal to the value of all his 
property. Although he had not made the contracts, and had received 
no benefit from them, and the law would have acquitted him from all 
obligation to pay them, he nevertheless gave up his stately home to 
the creditors of his false friend, retired with his family to a rude log 
cabin in a new clearing, and, rather than stain his character with an 
act of apparent wrong, his resolute soul faced poverty without a mur- 
mur. 

His education was not of the kind usually supposed necessary to 
make what is called an accomplished scholar. He had not those im- 
mense acquirements, which, in some men, overlay the mind and master 
the power of original thought. His researches were not for ornament, 
but for use ; it was not the flowers of literature, but the fruit, that 
attracted him. His understanding was eminently practical, and stored, 
not with fictions, but with truths. While history, ancient and mod- 
ern, sacred and profane, was familiar to him, it is, I suppose, extremely 
probable that he never read a novel in his life. His style was logical, 
vigorous, dignified, and characterized by the lucid order and clear 
reasoning which mark the production of a master— it was the elo- 
quence of truth, spoken by one who both felt and understood it. 
Some of his orders, messages, and protests are not exceeded, in the 
impressive force of their diction, by any public papers in the world, 
except only by the Declaration of Independence. 

As a lawyer, no man ever understood better than he did the great 



202 EULOGIES. 

secret of success in an honest community. I mean the moral rectitude 
which always supports justice and always frowns upon fraud. It may 
be that he was no great adept in the mere technical tricks of the trade. 
We do not hear that lie ever caused an innocent man to be executed, 
or cheated jiublic justice out of a guilty victim. He had none of the 
glowing speech whicli could make the worse appear the better reason ; 
and no truly great man ever had it. lie ** affected not the devilish 
skill of outbaffling right, nor aimed at the shameful glory of making a 
bad cause good." But lie could present truth in the proper attrac- 
tions of its own beauty, and falsehood shrank away from the ])iercing 
scrutiny of his investigation. As a science, he had thoroughly mas- 
tered the law. Those great principles which have their home in the 
lionest heart ; the wisdom which tries all things by the standard of 
natural justice ; the unclouded steadiness of mental vision, which 
looks quite through the mists of sophistry ; the resistless vigor of 
mind, which brushes away the artificial impediments that obstruct the 
road to truth ; the luminous understanding which sends a stream of 
light into every dark corner where fraud might lurk to hide itself ; the 
sterling integrity, which braves all danger in the cause of justice — all 
these he had, and they made him a lawyer great in the truest sense of 
the word. These qualities it was that enabled him, when his foot was 
barely on the threshold of business, to stand unawcd before the })istols 
of seventy desperadoes, rather than soil his hands by undertaking their 
false defense. They gave dignity and grace to his judicial character 
and made his public papers unanswerable. They extorted from the 
Chief-Justice of the United States the declaration that he was the 
proioundest constitutional lawyer in tlie country ; and compelled the 
most distinguished members of Congress, when the Seminole cam- 
paign was discussed, and after his defense was read, to admit that 
Jackson, in the woods of Alabama, and with no authorities to consult, 
understood and explained the rules of international law better than any 
man at Washington with the aid of all the books in the public library. 
Among tlie military leaders of this country, whose talents were 
developed by the last war, Jackson stands alone and jieerless, W' ithout 
a rival to come near him. He had all the qualities of a great com- 
mander — courage, vigilance, activity, and skill. His attack was the 
kingly swoop of the eagle on his jn-ey, and his defense Avas like that 
of the roused lion when he stands at bay in his native jungle. His 
character in this department is indeed sui generis altogether. The 
history of the world contains no record of any man who has done so 
much, and done it so well, with means so inadequate. He was not a 
''fortunate soldier." All the circumstances with which he was sur- 
rounded were adverse. But his daring spirit made Fortune bend to 
him, and compelled her to bless his standard with a success she never 
meant for him. 



EULOGIES. 203 

It is not, however, upon his military services that liis fame rests 
principally. His defense of our Constitution deserves, and posterity 
will i)ay to it, a higher praise than his deeds of arms are entitled to. 
For him i)c'aco had her victories far more renowned than those of war. 
They elicited from him higher (pialitios of mind and heart. The nerve 
that meets an enemy on the Hold is comparatively a cheap virtue, for 
thousands in all ages have had it. But it is not once in a century 
that a man is born with the high moral courage Avhich fits him to take 
the lead in a great reform. Ho who supports political truth must 
indeed be well armed in 

•' Till) strong breast- plato of n heart untuintod," 

if ho can endure the lingering warfare which will be waged against 
his reputation by that " wild and many-weaponcd throng " which 
always opposes the progress of liberal pi-inciples. This priceless gift 
was bestowed on Jackson in all its perfection, and it i)laced him in 
the very front of the world's march. He saw further into futurity 
than any man of his time, and his was the fearless honesty to tell his 
countrymen what he did see. lie had a heart full of hope and manly 
trust in the people ; and they were true to him, because ho was true to 
them, lie pursued Aviso ends by fair means, and in doing so he knew 
fear only by name. No abuse was too sacred, nor no fraud too popu- 
lar, for the uns])aring hand of his reform, lie was no demagogue 
to fawn upon the masses and Hatter their prejudices. He spoke to 
them like a friend, for he was their friend — their devoted and faithful 
friend — but he told them plain truth, whether they liked to hear it or 
not. lie know that no appeal for evil purposes could be made to any 
peoi)le so successfully as one addressed to their covetousness, and that 
no deity had votaries so faithful or so numerous as those of Mammon, 
the meanest and "the least erect of all the spirits that fell." lie saw 
the friglitful superstition which made strong men bow before the 
shrine of that base idol, covering the nation as with a dark pall, and 
weaning the hearts of the people from the worship of liberty and jus- 
tice. Did he encourage their strong delusion by joining in the adora- 
tion ? No ; he struck at the false god in his very temple, and took 
his priests by the beard even between the horns of the altar. 

He has been called ambitious. In one sense this accusation of his 
enemies coincides exactly with the praises of his friends. He was 
ambitious. But his was the ambition of a noble nature — an affec- 
tionate yearning to be loved by his country as he loved her — an in- 
tense desire to leave behind him a name hallowed by its association 
with great and beneficent actions — and to sleep at last in a grave 
made sacred by the veneration of the wise and the virtuous. Let 
those who object to such ambition make their worst of it. But, if 
14 



204 EULOGIES. 

any one supposes that his life was at all influenced by the vulgar love 
of power for its own sake, or by the sordid desire to pocket the emol- 
uments of public station, let him remember this : that there never 
was a period, from Jackson's arrival at the age of twenty-one till the 
day of his death, when he might not have been in the public service 
if he had so chosen ; yet he spent more than half his time in private 
retirement. lie never in his life, upon any occasion, solicited the 
people or any of their appointing agents for a place. His countrymen 
pressed upon him eleven different offices, without any procurement of 
his. Some of them he accepted with reluctance, and all of them he 
resigned before the terms expired, except one : that one he surren- 
dered back to the peojile after having held it as long as Washington 
held it before him. 

Others have said that he was overbearing and tyrannical — a con- 
temner of all authority. No one can deny that he was a man of strong 
will, impetuous passions, and fiery temper. But he was most emphati- 
cally a law-abiding man. If there ever lived one who would go fur- 
ther to defend the Constitution and laws of his couutr}', or more cheer- 
fully shed his blood to save them from violation, neither history nor 
tradition has told us who he was. There is not a solitary act of his 
life among the many adduced to support this charge, which is not 
capable of a most clear and satisfactory defense. It is certain that, 
when engaged in the public service, he never suffered any one to in- 
terfere with his plans. When he formed them, he executed them, and 
if it became necessary to do so, he was ready to stake, not only his 
mortal existence, but his character (which was infinitely dearer to 
him) on the issue. It is this unequaled moral courage which lifts him 
so high above common great men. Others have been willing to die 
for their country, but he periled life, fortune, and fame together. 
And let it never be forgotten that these things were uniformly done 
in defense of public liberty — it was always for his country, never for 
himself, that he ''took the responsibility." Malice will not dare to 
say that the smallest taint of selfishness ever mingled with any of 
these transactions, and the blindest folly is not so stupid as to believe 
that his conduct in them could have been swayed by motives arising 
out of his personal interest. The strongest case ever cited against 
him will serve as an example. When he was defending New Orleans, 
he was surrounded with spies and traitors, and to prevent them from 
communicating with the enemy or stirring up sedition in his camp, it 
was necessary to proclaim martial law — necessary, according to the 
testimony of all witnesses — absolutely and imperatively necessary, ac- 
cording to the admission of Judge Hall himself. By that measure, 
the country could be saved ; without it, there was no hope. Under 
these circumstances, the temporary restraint upon Louallier and Hall 
were trifles light as air in his eyes ; for he weighed them in the scale 



EULOGIES, 205 

with a nation's liberty for ages. But when he had won the great bat- 
tle, when his brows were wreathed with victory, when his country 
was safe and he alone was in danger, he bowed his laureled head to 
the authority of the court with a submission as lowly as the hum- 
blest — nay, he protected the judge from the indignation of the mul- 
titude while he pronounced the most infamous sentence that ever 
stained a record. 

But I haye done. It was, perhaps, unnecessary to say so much. 
The character of Jackson is becoming better and better understood 
every day. Our children will marvel what manner of men their 
fathers were, among whom there could be a difference of opinion 
about the merits of such a man. The time is speeding rapidly on 
when he will be appreciated by all, without distinction of party or 
sect ; and then it will not be necessary to couple his defense with his 
eulogy. His fame, like a mighty river, will grow wider and deeper 
as it rolls downward. The wreaths on other brows may fall away, 
leaf after leaf withered and faded, but time will only add a greener 
freshness to the everlasting verdure of his laurels. In the constella- 
tion of talents and worth, which adorns the firmament of American 
glory, there is not one star before whose bright astrology the future 
friend of human liberty will kneel with a more fervent devotion. In 
all coming time, wherever a true American shall be found, if there be 
one pulse within his free-born bosom that beats more proudly than 
another, he will feel it throb when he hears the name of Andrew 
Jackson. 



ON THE DEATH OF JUDGE GIBS0:N". 

It is unnecessary to say that every surviving member of the court 
is deeply grieved by the death of Mr. Justice Gibson. In the course 
of nature it was not to be expected that he could live much longer, for 
he had attained the ripe age of seventy-six. But the blow, though not 
a sudden, was nevertheless a severe one. The intimate relations, per- 
sonal and oflScial, which we all bore to him, would have been suffi- 
cient to account for some emotion, even if he had been an ordinary 
man. But he was the Nestor of the bench, whose wisdom inspired 
the public mind with confidence in our decisions. By this bereave- 
ment the court lias lost what no time can repair ; for we shall never 
look upon his like again. 

We regarded him more as a father than a brother. None of us ever 
saw the Supreme Court before he was in it ; and to some of us his 
character as a great judge was familiar even in childhood. The ear- 
liest knowledge of the law we had was derived in part from his lumi- 



206 EULOGIES. 

nous expositions of it. lie was a judge of the Common Pleas before 
the youngest of us was born, and was a member of this court long be- 
fore the oldest was admitted to the bar. He sat here with tAventy-six 
different associates, of whom eighteen preceded him to the grave. For 
nearly a quarter of a century he was Chief-Justice, and, when he was 
nominally superseded by another^ as the head of the court, his great 
learning, venerable character, and overshadowing reputation, still 
made him the only chief whom the hearts of the people would know. 
During the long period of his judicial labors he discussed and decided 
innumerable questions. His opinions are found in no less than seventy 
volumes of the regular reports, from 2 Sergeant & Eawle to 7 Harris. 

At the time of his death he had been longer in office than any con- 
temporary judge in the world ; and in some points of character he had 
not his equal on the earth. Such vigor, clearness, and precision of 
thought were never before united with the same felicity of diction. 
Brougham has sketched Lord Stowcll justly enough as the greatest 
judicial writer that England could boast of, for force and beauty of 
style. He selects a sentence, and calls on the reader to admire the re- 
markable elegance of its structure. I believe that Judge Gibson never 
wrote an opinion in his life from which a passage might not be taken, 
stronger as well as more graceful in its turn of expression, than this 
which is selected with so much care, by a most zealous friend, from all 
of Lord Stowell's. 

His written language was a transcript of his mind. It gave the 
world the very form and pressure of his thoughts. It was accurate, 
because he knew the exact boundaries of the principles he discussed. 
His mental vision took in the whole outline and all the details of the 
ease, and with a bold and steady hand he painted what he saw. He 
made others understand him, because he understood himself. 

"... cui lecta potenter erit res, 
N'ec facnndia deseret hunc, nee lucidus ordo." 

His style was rich, but he never turned out of his way for figures 
of speech. He never sacrificed sense to sound, or preferred ornament 
to substance. If he reasoned much by comparison, it was not to make 
his composition brilliant, but clear. He spoke in metaphors often ; 
not because they were sought, but because they came to his mind un- 
bidden. The same vein of happy illustration ran through his conver- 
sation and his private letters. I was most of all struck with it in a 
careless memorandum, intended, when it was written, for no eye but 
his own. He never thought of disj)lay, and seemed totally unconscious 
that he had the power to make any. 

His words were always precisely adapted to the subject. He said 
neither more nor less than just the thing he ought. He had one 
faculty of a great poet — that of expressing a thought in language 



EULOGIES. 20Y 

t7liich could never afterward be paraphrased. When a legal principle 
passed tbrough his hands, he sent it forth clothed in a dress which 
fitted it so exactly that nobody ever presumed to give it any other. 
Almost universally the syllabus of his opinion is a sentence from it- 
self ; and the most heedless student, in looking over Wharton's Digest, 
can select the cases in which Gibson delivered the judgment, as readily 
as he would pick out gold coins from among coppers. For this reason 
it is, that though he was the least voluminous writer of the court, the 
citations from him at the bar are more numerous than from all the 
rest put together. Yet the men who shared with him the labors and 
responsibilities of this tribunal (of course I am not referring to any 
who are now here) stood among tbe foremost in the country for learn- 
ing and ability. To be their equal was an honor which few could at- 
tain ; to excel them was a most pre-eminent distinction. 

The dignity, richness, and purity of his written opinions was by 
no means his highest title to admiration. The movements of his mind 
were as strong as tbey were graceful. His periods not only pleased 
the ear, but sank into the mind. He never wearied the reader, but he 
always exhausted the subject. An opinion of his was an unbroken 
chain of logic, from beginning to end. His argumentation was always 
characterized by great power, and sometimes it rose into irresistible 
energy, dashing opposition to pieces with force like that of a batter- 
ing-ram. 

He never missed the point even of a cause which had been badly 
argued. He separated the chaff from the wheat almost as soon as he 
got possession of it. The most complicated entanglement of fact and 
law would be reduced to harmony under his hands. His arrangement 
was so lucid that the dullest mind could follow him with that intense 
pleasure which we all feel in being able to comprehend the workings 
of an intellect so manifestly superior. 

Yet he committed errors. It is wonderful that in the course of his 
long service he did not commit more. A few were caused by inatten- 
tion ; a few by want of time ; a few by preconceived notions which led 
him astray. When he did throw himself into the wrong side of a 
cause, he usually made an argument which it was much easier to over- 
rule than to answer. With reference to his erroneous opinions, he 
might have used the words of Virgil, which he quoted so happily in 
Eakin vs. Raub (13 Ser. & R. ) for another purpose : 

"... Si Pergama dextra 
Defend! possent, etiarn hac defeflsa fuissent.'" 

But he was of all men the most devoted and earnest lover of truth 
for its own sake. When subsequent reflection convinced him that he 
had been wrong, he took the first opportunity to acknowledge it. He 



208 EULOGIES. 

was often the earliest to discover his own mistakes, as well as the fore- 
most to correct them. 

He Avas inflexibly honest. The judicial ermine was as unspotted 
when he laid it aside for the habiliments of the grave as it was when 
he first assumed it. I do not mean to award him merely that common- 
place integrity which it is no honor to have, but simply a disgrace to 
want. He was not only incorruptible, but scrupulously, delicately, 
conscientiously free from all willful wrong, either in thought, word, or 
deed. 

Next, after his wonderful intellectual endowments, the benevolence 
of his heart was the most marked feature of his character. His was a 
most genial spirit ; affectionate and kind to his friends, and magnani- 
mous to his enemies. Benefits received by him were engraved on his 
memory as on a tablet of brass ; injuries were written in sand. He 
never let the sun go down upon his wrath. A little dash of bitterness 
in his nature would, perhaps, have given a more consistent tone to his 
character, and greater activity to his mind. He lacked the quahty 
which Dr. Johnson admired. He was not a good hater. 

His accomplishments were very extraordinary. He was born a 
musician, and the natural talent was highly cultivated. He was a 
connoisseui' in painting and sculpture. The whole round of English 
literature was familiar to him. He was at home among the ancient 
classics. He had a perfectly clear perception of all the great truths of 
natural science. He had studied medicine carefully in his youth and 
understood it well. His mind absorbed all kinds of knowledge with 
scarcely an effort. 

Judge Gibson Avas well appreciated by his fellow-citizens : not so 
highly as he deserved ; for that was scarcely possible. But admiration 
of his talents and respect for his honesty were universal sentiments. 
This was strikingly manifested when he was elected, in 1851, notwith- 
standing his advanced age, without partisan conuections, with no em- 
phatic political standing, and without manners, habits, or associations 
calculated to make him popular beyond the circle that knew him inti- 
mately. With all these disadvantages, it is said he narrowly escaped 
what miffht have been a dangerous distinction — a nomination on both 
of the opposing tickets. Abroad he has, for very many years, been 
thought the great glory of his native State. 

Doubtless the whole Commonwealth will mourn his death ; we all 
have good reason to do so. The profession of the law has lost the 
ablest of its teachers, this court the brightest of its ornaments, and 
the people a steadfast defender of their rights, so far as they were 
capable of being protected by judicial authority. For myself, I know 
no form of words to express my deep sense of the loss we have suf- 
fered. I can most truly say of him what was said, long ago, concern- 
ing one of the few among mortals who were yet greater than he : "I 



EULOGIES. 209 

did love the man, and do honor his memory, on this side idolatry, as 
much as any." 

As a token of respect for the deceased, it is ordered that the court 
do now adjourn. 



ON THE DEATH OF SENATOR CARPENTER. 

The American bar has not often suffered so great a misfortune as 
the death of Mr. Carpenter. He was cut off when he was rising as 
rapidly as at any previous period. In the noontide of his labors the 
night came, wherein no man can work. To what height his career 
might have reached if he had lived and kept his health another score 
of years, can now be only a speculative question. But when we think 
of his great wisdom and his wonderful skill in the forensic use of it, 
together with his other qualities of mind and heart, we can not doubt 
that in his left hand would have been uncounted riches and abundant 
honor, if only length of days had been given to his right. As it was, 
he distanced his contemporaries, and became the peer of the greatest 
among those who had started long before him. 

The intellectual character of no professional man is harder to ana- 
lyze than his. He was gifted with an eloquence sui generis. It con- 
sisted of free and fearless thought wreaked upon expression powerful 
and perfect. It was not line rhetoric, for he seldom resorted to poetic 
illustration ; nor did he make a parade of clinching his facts. He 
often warmed with feeling, but no bursts of passion deformed the sym- 
metry of his argument. The flow of his speech was steady and strong 
as tlie current of a great river. Every sentence was perfect ; every 
word was fitly spoken ; each apple of gold was set in its picture of 
silver. This singular faculty of saying everything just as it ought to 
be said was not displayed only in the Senate and in the courts ; every- 
where, in public and private, on his legs, in his chaii', and even lying 
on his bed, he always "talked like a book." 

I have sometimes wondered how he got this curious felicity of dic- 
tion. He knew no language but his mother-tongue. The Latin and 
Greek which he learned in boyhood faded entirely out of his memory 
before he became a full-grown man. At West Point he was taught 
French, and spoke it fluently ; in a few years afterward he forgot every 
word of it. But jierhaps it was not lost ; a language (or any kind of 
literature), though forgotten, enriches the mind as a crop of clover 
plowed down fertilizes the soil. 

His youth and early manhood was full of the severest trials. After 
leaving the Military Academy he studied law in Vermont, and was 
admitted, but conscientiously refused to practice without further 



210 EULOGIES. 

preparation. He went to Boston, where lie was most generously taken 
into the office of Mr. Choate. He soon won not only the good opinion 
of that very great man, but his unqualified admiration and unbounded 
confidence. With the beneficence of an elder brother, Choate paid his 
way through the years of his toilsome study, and afterward supplied 
him with the means of starting in the West. The bright prospect 
which opened before him in Wisconsin was suddenly overshadowed by 
an appalling calamity. His eyes gave way, and trusting to the treat- 
ment of a quack, his sight was wholly extinguished. For three years 
he was stone-blind, "the world by one sense quite shut out." Totally 
disabled and compassed round with impenetrable darkness, he lost 
everything except his courage, his hope, and the never-failing friend- 
ship of his illustrious preceptor. Supported by these, he was taken to 
an infirmary at New York, where, after a long time, his vision was 
restored. Subsequent to these events, and still under the auspices of 
Mr. Choate, he returned to Wisconsin and fairly began his professional 
life. 

It would be interesting to know what effect upon his mental char- 
acter was produced by his blindness. I believe it elevated, refined, 
and strengthened all his faculties. Before that time much reading 
had made him a very full man ; when reading became impossible, re- 
flection digested his knowledge into practical wisdom. He perfectly 
arranged his storehouse of facts and cases, and pondered intently iipon 
the first principles of jurisprudence. Thinking with all his might, 
and always thinking in English, he forgot his French, and acquired 
that surprising vigor and accuracy of English expression which com- 
pel us to admit that, if he was not a classical scholar, he was himself a 
classic of most original type. 

He was not merely a brilliant advocate, learned in the law, and 
deeply skilled in its dialectics ; in the less showy walks of the profes- 
sion he was uncommonly powerful. Whether drudging at the busi- 
ness of his office as a common-law attorney and equity pleader, or 
shining as leader in a great nisi prius cause, he was equally admirable, 
ever ready and perfectly suited to the place he was filling. This ca- 
pacity for work of all kinds was the remarkable part of his character. 
With his hands full of a most multifarious practice lie met political 
duties of great magnitude. As a Senator and party-leader he had 
burdens and responsibilities under which, without more, a strong man 
might have sunk. But this man's shoulders seemed to feel no weight 
that was even inconvenient. If Lord Brougham did half as much 
labor in quantity and variety, he deserved all the admiration he won 
for versatility and patience. 

Mr. Carpenter's notions of professional ethics were pure and high- 
toned. He never acted upon motives of lucre or malice. He would 
take what might be called a bad case, because he thought that every 



EULOGIES. 211 

man should have a fair trial ; but he would use no falsehood to gain 
it ; he was true to the court as well as to the client. He was the least 
mercenary of all lawyers ; a large proportion of his business was done 
for nothing. 

Outside of his family he seldom spoke of his religious opinions. 
He was not accustomed to give in his experience — never at all to me. 
He firmly believed in the morality of the New Testament, and in no 
other system. If you ask whether he practiced it perfectly, I ask in 
return. Who has ? Certainly not you or I. He was a gentle censor 
of our faults ; let us not bo rigid with his. One thing is certain : his 
faith in his own future was strong enough to meet death as calmly as 
he would expect the visit of a friend. Upward of a year since his 
physicians told him that he wonld certainly die in a few months, and 
he knew they were right ; but, with that inevitable doom coming visibly 
nearer every day, he went about his business with a spirit as cheerful 
as if he had a long lease of life before him. 

I think for certain reasons that my personal loss is greater than 
the rest of you have suffered. But that is a "fee grief due to my par- 
ticular breast." It is enough to say for myself that I did love the 
man in his lifetime, and do honor his memory now that he is dead. 



POLITICAL ESSAYS AND LETTERS. 



OBSERVATIONS ON TEERITORIAL SOVEREIGNTY.— RE- 
PLIES TO SENATOR DOUGLAS. 

I. 

Every one knows that Mr. Douglas, the Senator from Illinois, has 
written and printed an elaborate essay, comprising thirty-eight col- 
umns of "Harper's Magazine," in which he has undertaken to point 
out the "dividing-line between Federal and local authority.'' Very 
many persons have glanced over its paragraphs to catch the leading 
ideas without loss of time, and some few have probably read it with 
care. 

Those who dissent from the doctrines of this jjaper owe to its 
author, if not to his arguments, a most respectful answer. Mr. Doug- 
las is not the man to be treated with a disdainful silence. His ability 
is a fact unquestioned ; his public career, in the face of many disad- 
vantages, has been uncommonly successful ; and he has been for many 
years a working, struggling candidate for the presidency. He is, 
moreover, tlie Corypheus of his political sect, the founder of a new 
school, and his disciples naturally believe in the infallible verity of his 
words as a part of their faith. 

The style of i,he article is, in some respects, highly commendable. 
It is entirely j!ree from the vulgar clap-trap of the stump, and has no 
vain adornment of classical scholarship. But it shows no sign of the 
eloquent Senator ; it is even without the logic of the great debater. 
Many portions of it are very obscure. It seems to be an unsuccessful 
effort at legal precision, like the writing of a judge who is trying in 
vain to give good reasons for a wrong decision on a question of law 
which he has not quite mastered. 

With the help of Messrs. Seward and Lincoln, he has defined ac- 
curately enough the platform of the so-called Republican party ; and 
he does not attempt to conceal his conviction that their doctrines are 
in the last degree dangerous. They are, most assuredly, full of evil 
and saturated with mischief. The "irrepressible conflict," whicb 



POLITICAL ESSAYS AND LETTERS. 213 

they speak of with so much pleasure between tlie "opposing and en- 
during forces " of the Northern and Southern States, will be fatal, not 
merely to the peace of the country, but to the existence of the Gov- 
ernment itself. Mr. Douglas knows this, and he knows also that the 
Democratic party is the only power which is or can be organized to 
resist the Republican forces or oppose their hostile march upon the 
capital. He who divides and weakens the friends of the country at 
such a crisis in her fortunes assumes a very grave responsibility. 

Mr. Douglas separates the Democratic party into three classes, and 
describes them as follow : 

" 1. Those who believe that the Constitution of the United States 
neither establishes nor prohibits slavery in the States or Territories be- 
yond the power of the people legally to control it, bat ' leaves the peo- 
ple thereof perfectly free to form and regulate their domestic institu- 
tions in their own way, subject only to the Constitution of the United 
States. ' 

''2. Those who believe that the Constitution establishes slavery in 
the Territories, and withholds from Congress and the Territorial Legis- 
lature the power to control it, and who insist that, in the event the 
Territorial Legislature fails to enact the requisite laws for its protection, 
it becomes the imperative duty of Congress to interpose its authority 
and furnish such protection. 

"3. Those who, while professing to believe that the Constitution 
establishes slavery in the Territories beyond the power of Congress or 
the Territorial Legislature to control it, at the same time protest 
against the duty of Congress to interfere for its protection ; but insist 
that it is the duty of the judiciary to protect and maintain slavery in 
the Territories without any law upon the subject." 

We give Mr. Douglas the full benefit of his own statement. This 
is his mode of expressing those differences, which, he says, disturb the 
harmony and threaten the integrity of the American Democracy. 
These passages should, therefore, be most carefully considered. 

The first class is the one to which he himself belongs, and to both 
the others he is equally opposed. Ho has no right to come between 
the second and third class. If the difference which -iie speaks of does 
exist among his opponents, it is their business, not his^to settle it or 
fight it out. We shall therefore confine ourselves to the dispute be- 
tween Mr. Douglas and his followers on the one hand, and the rest of 
the Democratic party on the other, presuming that he will be willing 
to observe the principle of non-intervention in all matters with which 
he has no concern. 

We will invert the order in which he has discussed the subject, and 
endeavor to show — 

1. That he has not correctly stated the doctrine held by his oppo- 
nents ; and, 

2. That his own opinions, as given by himself, are altogether un- 
sound. 



214 POLITICAL ESSAYS AND LETTERS. 

I. He says that a certain portion of the Democratic party believe, 
or profess to believe, that ilie Constitution estahlishes slavery in the 
Territories, and insist that it is the duty of the judiciary to maintain 
it there without any law on the subject. We do not charge him with 
any intention to be unfair ; but we assert that he has in fact done 
wrong to, probably, nineteen twentieths of the party, by attempting 
to put them on grounds which they never chose for themselves. 

The Constitution certainly does not establish slavery in the Terri- 
tories, nor anywhere else. Nobody in this country ever thought or 
said so. But the Constitution regards as sacred and inviolable all the 
rights which a citizen may legally acquire in a State. If a man ac- 
quires property of any kind in a State, and goes with it into a Terri- 
tory, he is not for that reason to be stripped of it. Our simple and 
plain proposition is, that the legal owner of a slave or other chattel 
may go with it into a Federal Territory without forfeiting his title. 

Who denies the truth of this, and upon what ground can it be con- 
troverted ? The reasons which support it are very obvious and very 
conclusive. As a jurist and a statesman, Mr. Douglas ought to be 
familiar with them, and there was a time when he was supposed to 
understand them very well. AVe will briefly give him a few of them : 

1. It is an axiomatic principle of public law that a right of prop- 
erty, a private relation, condition, or status, lawfully existing in one 
State or country, is not changed by the mere removal of the parties to 
another country, unless the law of that other country be in direct con- 
flict with it. For instance : A marriage legally solemnized in France 
is binding in America ; children born in Germany are legitimate here 
if they are legitimate there ; and a merchant who buys goods in New 
York, according to the laws of that State, may carry them to Illinois 
and hold them there under his contract. It is precisely so with the 
status of a negro carried from one part of the United States to an- 
other ; the question of his freedom or servitude depends on the law of 
the place where he came from, and depends on that alone, if there be 
no conflicting law at the place to which he goes or is taken. The Fed- 
eral Constitution, therefore, recognizes slavery as a legal condition wher- 
ever the local governments have chosen to let it stand unabolished, and 
regards it as illegal wherever the laws of the place have forbidden it. 
A slave being property in Virginia, remains property ; and his master 
has all the rights of a Virginia master wherever he may go, so that he 
go not to any place where the local law comes in conflict with his right. 
It will not be pretended that the Constitution itself furnishes to the 
Territories a conflicting law. It contains no provision that can be tor- 
tured into any semblance of a prohibition. 

2. The dispute on the question whether slavery or freedom is local 
or general is a mere war of words. The black race in this country is 
neither bond nor free by virtue of any general law. That portion of 



POLITICAL ESSAYS AND LETTERS. 215 

it wliich is free is free by virtue of some local regulation, and the slave 
owes service for a similar reason. The Constitution and laws of the 
United States simply declare that everything done in the premises by 
the State governments is right, and they shall be protected in carrying 
it out. But free negroes and slaves may both find themselves outside 
of any State jurisdiction, and in a Territory where no regulation has 
yet been made on the subject. There the Constitution is equally im- 
partial. It neither frees the slave nor enslaves the freeman. It re- 
quires both to remain in statu quo, until the status already impressed 
upon them by the law of their previous domicile shall be changed by 
some competent local authority. What is competent local authority 
in a Territory will be elsewhere considered. 

3. The Federal Constitution carefully guards the rights of private 
property against the Federal Government itself, by declaring tliat it 
shall not be taken for public use without compensation, nor without 
due process of law. Slaves arc private property, and every man who 
has taken an oath of fidelity to the Constitution is religiously, morally, 
and politically bound to regard them as such. Does anybody suppose 
that a Constitution which acknowledges the sacredness of private j^rop- 
erty so fully would wantonly destroy that right, not by any words that 
are fount! in it, but by mere implication from its general principles ? 
It might as well be asserted that the general principles of the Consti- 
tution gave Lane and Montgomery a license to steal horses in the valley 
of the Osage. 

4. The Supreme Court of the United States has decided the ques- 
tion. After solemn argument and careful consideration, that august 
tribunal has announced its opinion to be, that a slaveholder, by going 
into a Federal Territory, does not lose the title he had to his negro in 
the State from which he came. In former times a question of con- 
stitutional law once decided by the Supreme Court was regarded as 
settled by all, except that little band of ribald infidels, who meet peri- 
odically at Boston, to blasj)lieme the religion and plot rebellion against 
the laws of the country. The leaders of the so-called Eepublican 
party have lately been treading close on the heels of their abolition 
brethren ; but it is devoutly to be hoped that Mr. Douglas has no in- 
tention to follow their example. In case he is elected President, he 
must see the laws faithfully executed. Does he think he can keep that 
oath by fighting the judiciary ? 

5. The legislative history of the country shows that all the great 
statesmen of former times entertained the same opinion, and held it 
so firmly that they did not even think of any other. It was univers- 
ally taken for granted that a slave remained a slave, and a freeman a 
freeman, in the new Territories, until a change was made in their con- 
dition by some positive enactment. Nobody believed that a slave 
might not have been taken to and kept in the Northwest Territory, if 



216 POLITICAL ESSAYS AND LETTERS. 

the Ordinance of 1787 or some other regulation had not been made to 
prohibit it. The Missouri restriction of 1820 was imposed solely be- 
cause it was understood (probably by every member of that Congress) 
that, in the absence of a restriction, slave property would be as lawful in 
the eye of the Constitution above 3G° 30' as below ; and all agreed that 
the mere absence of a restriction did, in fact, make it lawful below 
the compromise line. 

6. It is right to learn wisdom from our enemies. The Eepublicans 
do not point to any express provision of the Constitution, nor to any 
general principle embraced in it, nor to any established rule of law, 
which sustains their views. The ablest men among them are driven, 
by stress of necessity, to hunt for arguments in a code unrevealed, un- 
written, and undefined, which they put above the Constitution or the 
Bible, and call it "higher law." The ultra-abolitionists of New Eng- 
land do not deny that the Constitution is rightly interpreted by the 
Democrats, as not interfering against slavery in the Territories ; but 
they disdain to obey what they pronounce to be ''an agreement with 
death and a covenant with hell." 

7. What did Mr. Douglas mean when he proposed and voted for 
the Kansas-Nebraska Bill repealing the Missouri restriction ? Did he 
intend to tell Southern men that, notwithstanding the repeal of the 
prohibition, they were excluded from those Territories as much as ever ? 
Or did he not regard the right of a master to his slave as perfectly 
good whenever he got rid of the prohibition ? Did he, or anybody 
else at that time, dream that it was necessary to make a positive law 
in favor of the slaveholder before he could go there with safety ? 

To ask these questions is to answer them. The Kansas-Nebraska 
Bill was not meant as a delusion or a snare. It was well understood 
that the repeal alone of the restriction against slavery would throw 
the country open to everything which the Constitution recognized as 
property. 

We have thus given what we believe to be the opinions held by the 
great body of the Democratic party ; namely, that the Federal Con- 
stitution does not establish slavery anywhere in the Union ; that it 
permits a black man to be either held in servitude or made free, as the 
local law shall decide ; and that, in a Territory where no local law on 
the subject has been enacted, it keeps both the slave and the free negro 
in the status already impressed upon them, until it shall be changed 
by competent local authority. We have seen that this is sustained by 
the reason of the thing, by a great jorinciple of public law, by the 
words of the Constitution, by a solemn decision of the Supreme Court, 
by the whole course of our legislation, by the concession of our politi- 
cal opponents, and, finally, by the most important act in the public 
life of Mr. Douglas himself. 

Mr. Douglas imputes another absurdity to his opponents when he 



POLITICAL ESSAYS AND LETTERS. 21T 

c'harges them with insisting that " it is the duty of the judiciary to 
protect and maintain slavery in the Territories, without any law upon 
the subject.'" The judge who acts without law acts against law ; and 
surely no sentiment so atrocious as this was ever entertained by any 
portion of the Democratic party. The right of a master to the ser- 
vices of his slave in a Territory is not against law nor without law, 
but in full accordance with law. If the law be against it, we are all 
against it. Has not the emigrant to Nebraska a legal right to the ox- 
team, which he bought in Ohio, to haul him over the plains ? Is not 
his title as good to it in the Territory as it was in the State where he 
got it ? And what should be said of a judge who tells him that he is 
not protected, or that he is maintained, in the possession of his prop- 
erty, " without any law upon the subject " ? 

II. We had a right to expect from Mr. Douglas at least a clear and 
intelligible definition of his own doctrine. "We are disappointed. It 
is hardly possible to conceive anything more difficult to comprehend. 
We will transcribe it again, and do Avhat can be done to analyze it : 

" Those who believe that the Constitution of the United States 
neither establishes nor prohibits slavery in the States or Territories be- 
yond the power of the people legally to control it, but ' leaves the peo- 
ple thereof perfectly free to form and regulate their domestic institu- 
tions in their own way, subject only to the Constitution of the United 
States.'" 

77ie Constitution neither establishes nor prohibits slavery in the 
States or Territories. If it be meant by this that the Constitution 
does not, propria vigore, either emancipate any man's slave, or create 
the condition of slavery and impose it on free negroes, but leaves the 
question of every black man's status, in the Territories as well as in 
the States, to be determined by the local law, then we admit it, for 
it is the very same proposition which we have been trying to prove. 
But if, on tlie contrary, it is to be understood as an assertion that the 
Constitution does not permit a master to keep his slave, or a free 
negro to have his liberty, in all parts of the Union where the local law 
does not interfere to prevent it, then the error is not only a very grave 
one, but it is also absurd and self-contradictory. 

The Co7istitution neither establishes nor prohibits slavery in the 
States or Territories beyond the power of the people legally to control it. 
This is sailing to Point No-Point again. Of course, a subject which 
is legally controlled can not be beyond the power that controls it. 
But the question is. What constitutes legal control, and when are the 
people of a State or Territory in a condition to exercise it ? 

The Constitution of the United States . . . leaves the people per- 
fectly free, . . . and subject otily to the Constitution of the United 



218 POLITICAL ESSAYS AND LETTERS. 

suites. This carries us' round a full circle, and drops us precisely at 
the place of beginning. That the Constitution leaves everybody sub- 
ject to the Constitution is most true. We are far from denying it. 
We never heard it doubted, and ex})ect we never will. But the state- 
ment of it proves nothing, defines nothing, and explains nothing. 
It merely darkens the subject, as words without meaning always do. 

But, notwithstanding all this circuity of expression and consequent 
opaqueness of meaning in the magazine article of Mr. Douglas, we 
think we can guess what his opinions are or will be when he comes to 
reconsider the subject. lie will admit (at least he will not undertake 
to deny) that the status of a negro, whether of servitude or freedom, 
accompanies him wherever he goes, and adheres to him in every part 
of the Union until he meets some local law which changes it. 

It will also be agreed that the people of a State, through their Leg- 
islature, and the people of a Territory, in the Constitution Avhich they 
may frame preparatory to their admission as a State, can regulate and 
control the condition of the subject black race within their respective 
jurisdictions, so as to make them bond or free. 

But here we come to the jioint at which opinions diverge. Some 
insist that no citizen can be deprived of his property in slaves, or in 
anything else, except by the provision of a State Constitution or by the 
act of a State Legislature ; while others contend that an unlimited 
control over private rights may be exercised by a Tcrritoi'ial Legislature 
as soon as the earliest settlements are made. 

So strong are the sentiments of Mr. Douglas in favor of the latter 
doctrine, that if it be not established, he threatens us with Mr. Sew- 
ard's "irrepressible conflict," which shall end only with the universal 
abolition or the universal dominion of slavery. On the other hand, 
the President, the Judges of tlie Supreme Court, nearly all the Demo- 
cratic members of Congress, the whole of tlie party South, and a very 
large majority North, are penetrated with a conviction that no such 
power is vested in a Territorial Legislature, and that those who desire 
to confiscate private property of any kind must wait until they get a 
constitutional convention or the machinery of a State government into 
their hands. We venture to give the following reasons for believing 
that Mr. Douglas is in error : 

The Supreme Court has decided that a Territorial Legislature has 
not the power which he claims for it. That alone ought to be suffi- 
cient. There can be no law, order, or security for any man's rights, 
unless the judicial authority of the country be upheld. Mr. Douglas 
may do what he pleases with political conventions and party plat- 
forms, but we trust he will give to the Supreme Court at least that 
decent respect which none but the most ultra-Republicans have yet 
withheld. 

The right of property is sacred, and the first object of all human 



POLITICAL ESSAYS AND LETTERS. 219 

government is to make it secure. Life is always unsafe where prop- 
erty is not fully protected. This is the experience of every people on 
earth, ancient and modern. To secure jirivate property was a princi- 
pal object of Magna CJiarta. Charles I afterward attemi)ted to violate 
it ; but the people rose upon him, dragged him to the block, and sev- 
ered his head from his body. At a still later period another monarch 
for a kindred offense was driven out of the country, and died a fugitive 
and an outcast. Our own Revolution Avas provoked by that slight in- 
vasion upon the right of property which consisted in the exaction of a 
trilling tax. There is no government in the world, however absolute, 
which would not be disgraced and endangered by wantonly sacri- 
ficing private property even to a small extent. For centuries past such 
outrages have ceased to be committed in times of peace among civil- 
ized nations. 

Slaves are regarded as property in the Southern States. The peo- 
ple of that section buy and sell, and carry on all their business, provide 
for their families, and make their wills and divide their inheritance on 
that assumption. It is manifest to all who know them that no doubts 
ever cross their minds about the rightfulness of holding such property. 
They believe they have a direct warrant for it, not only in the exam- 
ples of the best men that ever lived, but in the precepts of Divine 
revelation itself ; and they are thoroughly satisfied that the relation 
of master and slave is the only one which can possibly exist there be- 
tween the white and the black race without ruining both. The people 
of the North may differ from their fellow-citizens of the South on the 
whole subject, but knowing, as we all do, that these sentiments are sin- 
cerely and honestly entertained, we can not wonder that they feel the 
most unspeakable indignation when any attempt is made to interfere 
with their rights. This sentiment results naturally and necessarily 
from their education and habits of thinking. They can not help it any 
more than an honest man in the North can avoid abhorring a thief or 
a housebreaker. 

The jurists, legislators, and people of the Northern States have 
always sacredly respected the right of property in slaves held by their 
own citizens within their own jurisdiction. It is a remarkable fact, 
very well worth noticing, that no Northern State ever passed any 
law to take a negro from his master. All laws for the abolition of 
slavery have operated only on the unborn descendants of the negro 
race, and the vested rights of masters have not been disturbed in the 
North more than in the South. 

In every nation under heaven, civilized, semi-barbarous, or savage, 
where slavery has existed in any form at all analogous to ours, the rights 
of the masters to the control of their slaves as property have been re- 
spected ; and on no occasion has any government struck at those rights, 
except as it would strike at other propertv. Even the British Parlia- 
15 



220 POLITICAL ESSAYS AND LETTERS. 

ment, when it emancipated tlie West India slaYes, though it was legislat- 
ing for a people three thousand miles away, and not represented, never 
denied either the legal or the natural right of the slave-owner. Slaves 
were admitted to be property, and the Government acknowledged it 
by paying their masters one hundred million dollars for the privilege 
of setting them free. 

Here, then, is a species of property which is of transcendent im- 
portance to the material interests of the South — which the people of 
that region think it right and meritorious in the eyes of God and good 
men to hold — which is sanctioned by the general sense of all mankind 
among whom it has existed — which was legal only a short time ago in 
all the States of the Union, and was then treated as eacred by every 
one of them — which is guaranteed to the owner as much as any other 
property is guaranteed by the Constitution ; and Mr. Douglas thinks 
that a Territorial Legislature is competent to take it away. We say 
no ; the supreme legislative power of a sovereign State alone can de- 
prive a man of his property. 

This proposition is so plain, so well established, and so universally 
acknowledged, that any argument in its favor would be a mere waste 
of words. Mr. Douglas does not deny it, and it did not require the 
thousandth part of his sagacity to see that it was undeniable. He 
claims for the Territorial governments the right of confiscating private 
property on the ground that those governments aee sovereign — have 
an uncontrollable and independent power over all their internal affairs. 
That is the point which he thinks is to split the Democracy and im- 
pale the nation. But it is so entirely erroneous that it must vanish 
into thin air as soon as it comes to be examined. 

A Territorial government is merely provisional and temporary. It 
is created by Congress for the necessary preservation of order and the 
purposes of police. The powers conferred upon it are expressed in 
the organic act, which is the charter of its existence, and which may 
be changed or repealed at the pleasure of Congress. In most of those 
acts the power has been expressly reserved to Congress of revising the 
Territorial laws, and the power to repeal them exists without such 
reservation. This was asserted in the case of Kansas by the most dis- 
tinguished Senators in the Congress of 185G. The President appoints 
the Governor, judges, and all other officers whose api^ointment is not 
otherwise provided for, directly or indirectly, by Congress. Even the 
expenses of the Territorial government are paid out of the Federal 
Treasury. The truth is, they have no attribute of sovereignty about 
them. The essence of sovereignty consists in having no superior. But 
a Territorial government has a superior in the United States Govern- 
ment, upon whose pleasure it is dependent for its very existence — in 
whom it lives, and moves, and has its being — who has made, and can 
unmake it with a breath. 



POLITICAL ESSAYS AND LETTERS. 221 

Where does this sovereign authority to deprive men of their prop- 
erty come from ? This transcendent power, which even despots are 
cautious about using, and which a constitutional monarch never exer- 
cises — how does it get into a Territorial Legislature ? Surely it does 
not drop from the clouds : it will not be contended that it accom- 
panies the settlers, or exists in the Territory before its organization. 
Indeed, it is not to the people, but to the government of a Territory, 
that Mr. Douglas says it belongs. Then Congress must give the power 
at the same time that it gives the Territorial government. But not a 
word of tlie kind is to be found in any organic act that ever was 
framed. It is thus that Mr. Douglas's argument runs itself out into 
nothing. 

But if Congress would pass a statute expressly to give this sort of 
power to the Territorial governments, they still would not have it ; 
for the Federal Government itself does not possess any control over 
men's property in the Territories. That such power does not exist in 
the Federal Government needs no proof ; Mr. Douglas admits it fully 
and freely. It is, besides, established by the solemn decision of Con- 
gress, by the assent of the Executive, and by the direct ratification of 
the people acting in their primary capacity at the polls. In addition 
to all this, the Supreme Court have deli))erately adjudged it to be an 
unalterable and undeniable rule of constitutional law. 

This acknowledgment that Congress has no power, authority, or 
jurisdiction over the subject, literally obliges Mr. Douglas to give up 
his doctrine, or else to maintain it by asserting that a power which the 
Federal Government does not possess may be given by Congress to the 
Territorial government. The right to abolish African slavery in a 
Territory is not granted by the Constitution to Congress ; it is with- 
held, and therefore the same as if expressly prohibited. Yet Mr. 
Douglas declares tliat Congress may give it to the Territories. Nay ; 
he goes further, and says that the loant of the power in Congress is 
the very reason why it can delegate it — the general rule, in his opinion, 
being that Congress can not delegate the powers it possesses, but may 
delegate such, ''and only such as Congress can not exercise under the 
Constitution ! " By turning to pages 530 and 521, the reader will see 
that this astounding proposition is actually made, not in jest or irony, 
but solemnly, seriously, and, no doubt, in perfect good faith. On this 
principle, as Congress can not exercise the power to make an ex post 
facto law, or a law impairing the obligation of contracts, therefore it 
may authorize such laws to be made by the town councils of Washing- 
ton city, or the levy court of the district. If Congress passes an act 
to hang a man without trial, it is void, and the judges will not allow 
it to be executed ; but the power to do this prohibited thing can be 
constitutionally given by Congress to a Territorial Legislature ! 

We admit that there are certain powers bestowed upon the General 



222 POLITICAL ESSAYS AND LETTERS. 

Government whicli arc in tlicir nature judicial or executive. With 
them Congress can do notliing except to see tliat they aj-e executed 
by the proper kind of otliccrs. It is also true that Congress has cer- 
tain legislative powers which can not be delegated. But Mr. Douglas 
should have known that he was not talking about jioAvcrs which be- 
longed to either of these classes, but about a legislative jurisdiction 
totally forbidden to the Federal Government, and incapable of being 
delegated, for the simjile reason that it docs not constitutionally exist. 

Will anybody say tliat such a power ouglit, as a matter of policy, 
or for reasons of ])ublic safety, to be held by tJio provisional govern- 
ments of the Territories ? Undoubtedly no true patriot, nor no friend 
of justice and order, can deliberately reflect on the probable conse- 
quences without depi-eoating tlieni. 

This power over projxjrty is the one which in all governments has 
been most carefully guarded, because the temptation to abuse it is 
always greater than any other. It is there that the subjects of a lim- 
ited monai-chy watch their king with the greatest jealousy. No re- 
public has ever failed to impose strict limitations npon it. All free 
people know that, if they would remain free, they must compel the 
government to keep its hands olf their private property ; and this can 
bo done only by tying them uj) Avith careful restrictions. Accordingly, 
our Federal Constitution declares that "no person shall be deprived 
of his property except by due process of law," and that ''private 
property shall not be taken for public use wiihont jnst compensation." 
It is universally agreed that this ajiplies only to the exercise of the 
power by the Government of the United States. We are also pro- 
tected against the State governments by a similar provision in the 
State Constitutions. Legislative robbery is therefore a crime Avhich 
can not be committed either by Congress or by any State Legislature, 
unless it be done in flat rebellion to the fundamental law of the land. 
But if the Territorial governments have this power, then they have it 
"witliontany limitation whatsoever, and in all the fullness of absolute 
despotism. They are omnijwtent in regard to all their internal affairs, 
for they are (sovereigns, withoict a constitution to hold them in check. 
And this omnii>otent sovereignty is to be wielded by a few men sud- 
denly drawn together from all parts of America and Europe, unac- 
quainted with one another, and ignorant of their relative rights. But 
if Mr. Douglas is right, those governments have all the absolute i)ower 
of the IlussiaTi autocrat. They may take every kind of jn'operty in 
mere ca]>riee, or for any jwrposo of lucre or malice, without process 
of law, and without providing for compensation, Tiie Legislature of 
Kansas, sitting at Lecompton or Lawrence, may order the miners to 
give up every ounce of gold that has been dug at Pike's Peak. If the 
autliorities of Utah should license a band of marauders to despoil the 
emigrants crossing the Territory, tlieir sovereign right to do so cao 



POLITICAL ESSAYS AND LETTERS. 223 

not be questioned. A new Territory may be organized, vvliicli SouLlicrn 
men think should bo devoted to the culture of cotton, wiiile the peoi)le 
of the JNorth arc e({ually certain that grazing alone is the pro[)er busi- 
ness to be carried on there. If one party, by accident, by force, or by 
fraud, has a majority in the Legislature, the negroes are taken from 
the planters; and if the other set gains a political victory, it is fol- 
lowed by a statute to plunder the graziers of their cattle. Such things 
can not be done by the Federal fjiovcrnmcnt, nor by the governments 
of the States ; but, if Mr. Douglas is not mistaken, they can be done 
by the Territorial governments. Is it not every way better to wait 
until the ncAV inhabitants know themselves and one another ; until the 
policy of the Territory is settled by some experience ; and, above all, 
until tiie great powers of a sovereign State are regularly conferred upon 
them and properly limited, so as to prevent the gross abuses which 
always accompany unrestricted power in human hands ? 

There is another consideration which Mr. Douglas should have 
been the last nuin to overlook. The present administration of the 
Federal Government, and the whole Democratic party throughout the 
country, including Mr. Douglas, thought that, in the case of Kansas, 
the (juestion of retaining or abolishing slavery should not be deter- 
mined by any representative body without giving to the whole mass 
of the peo])le an oi)[)ortunity of voting on it. Mr. Douglas carried it 
further, and warmly opposed the Constitution, denying even its valid- 
ity, because other and undisjjuted parts of it had not also been sub- 
mitted to a i)opular vote. Now he is willing that the whole slavery 
dispute in any Territory, and all questions that can arise concerning 
the rights of the people to that or other property, shall be decided at 
once by a Territorial Legislature, without any submission at all. Popu- 
lar sovereignty in the last Congress meant the freedom of the people 
from all the restraints of law and order — now it means a government 
which shall rule them with a rod of iron. It swings like a pendulum 
from one side clear over to the other. 

Mr. Douglas's opinions on this subject of sovereign Territorial gov- 
ernments are very singular ; but the reasons he has produced to suji- 
port them are infinitely more curious still. For instance, he shows 
that Jefferson once introduced into the old Congress of the Con- 
federation a plaji for the government of the Territories, calling them 
by the name of " New States," but not making them anything like 
sovereign or independent States; and, though this was not embod- 
ied in the Constitution, nor ado])ted by ajiy subsecjuent Congress, 
nor ever afterward referred to by Jellerson himself, yet Mr. Douglas 
argues upon it as if it had somehow become a part of our funda- 
mental law. 

Again : He says that the States gave to the Federal Covernment 
the same powers which as colonies they had been willing to concede 



224 POLITICAL ESSAYS AND LETTERS. 

to the British Government, and kept those which as colonies tliey had 
claimed for themselves. If he will read a common-school history of 
the Revolution, and then look at Article I, section 8, of the Constitu- 
tion, he will find the two following facts fully established : 1. That 
the Federal Government has "power to lay and collect taxes, duties, 
imports, and excises " ; and, 2. That the colonies before the Revolution 
utterly refused to be taxed by Great Britain ; and, so far from conced- 
ing the power, fought against it for seven long years. 

There is another thing in the article which, if it had not come from 
a distinguished Senator, and a very upright gentleman, would have 
been open to some imputation of unfairness. He quotes the President's 
message, and begins in the middle of a sentence. He professes to give 
the very words, and makes Mr. Buchanan say that ''slavery exists 
in Kansas by virtue of the Constitution of the United States." "What 
Mr. Buchanan did say was a very different thing. It was this : " It 
has been solemnly adjudged, by the highest judicial tribunal known to 
our laws, that slavery exists in Kansas by virtue of the Constitution 
of the United States." Everybody knows that by treating the Bible 
in that way you can prove the non-existence of God. 

Mr. Douglas has a right to change his opinions whenever he 
pleases. But we quote him as we would any other authority equally 
high in favor of truth. We can prove by himself that every propo- 
sition he lays down in "Harper's Magazine" is founded in error. 
Never before has any public man in America so completely revolution- 
ized his political opinions in the course of eighteen months. We 
do not deny that the change is heart-felt and conscientious. We 
only insist that he formerly stated his propositions much more clear- 
ly, and sustained them with far greater ability and better reasons than 
he does now. 

When he took a tour to the South, at the beginning of last winter, 
he made a speech at New Orleans, in which he announced to the peo- 
ple there that he and his friends in Illinois accepted the Dred Scott 
decision, regarded slaves ii% property, and fully admitted the right of 
a Southern man to go into any Federal Territory with his slave, and 
to hold him there as other property is held. 

In 1849 he voted in the Senate for what was called Walker^s amend- 
ment, by which it was proposed to put all the internal affairs of Cali- 
fornia and New Mexico under the domination of the President, giving 
him almost unlimited power, legislative, judicial, and executive, over 
the internal affairs of those Territories. Undoubtedly this was a 
strange way of treating sovereignties. If Mr. Douglas is right now, 
he was guilty then of a most atrocious usurpation. 

Utah is as much a sovereign State as any other Territory, and as 
perfectly entitled to enjoy the right of self-government. On the 12th 
of June, 1857, Mr. Douglas made a speech about Utah, at Springfield, 



POLITICAL ESSAYS AND LETTERS. 225 

Illinois, in which he expressed his opinion strongly in favor of tlic ab- 
solute and unconditional repeal of the organic act, Uotting the Terri- 
torial government out of existence, and putting the people under the 
sole and exclusive jurisdiction of the United States, like a fort, arsenal, 
dock-yard, or magazine. He does not seem to have had the least idea 
then that he was proposing to extinguish a sovereignty, or to trample 
upon the sacred rights of an independent people. 

The report which he made to the Senate, in 185G, on the Topeka 
Constitution, enunciates a very different doctrine from that of the 
magazine article. It is true that the language is a little cloudy, but 
no one can understand the following sentences to signify that the Terri- 
torial governments have sovereign power to take away the property of 
the inhabitants : 

*' Tiie sovereignty of a Territory remains in aleyance, sufipended in 
the United States, in trust for the people until they shall he admitted 
into the Union as a State. In the mean time they are admitted to en- 
joy and exercise all the rights and privileges of self-government, in 
subordination to the Constitution of the United States, and in obedi- 
ence TO THE oiiGANio LAW passcd by Congress in pursuance of that 
instrument. These rights and privileges are all derived from the Con- 
stitution, through the act of Congress, and must be exercised and en- 
joyed in subjection to all the limitations and restrictions which that 
Constitution imposes." 

The letter he addressed to a Philadelphia meeting, in February, 
1858, is more explicit, and, barring some anomalous ideas concerning 
the abeyance of the power and the suspension of it in trust, it is clear 
enough : 

" Under our Territorial system, it requires sovereign power to or- 
dain and establish constitutions and governments. While a Territory 
may and should enjoy all the rights of self-government, in obedience 
to its organic lata, it is not a sovereign power. The sovereignty 
of a Territory remains iti abeyance, suspended in the United States, 
in trust for the people when they become a State, and can not be with- 
draion from the hands of the trustee and vested in the people of a Terri- 
tory without the consent of Congress." 

The report which he made in the same month, from the Senate 
Committee on Territories, is equally distinct, and rather more em- 
phatic against his new doctrine : 

" This committee in their reports have always held that a Territory 
is not a sovereign power; that the sovereignty of a Territory is in 
abeyance, suspended in the United States, in trust for the people when 
they become a State ; that the United States, as trustees, can not be 
divested of the sovereignty, nor the Territory be invested with the 
right to assume and exercise it, without the consent of Congress. If 
the proposition be true that sovereign power alone can institute gov- 
ernments, and that the sovereignty of a Territory is in abeyance, sus- 



226 POLITICAL ESSAYS AND LETTERS. 

ponded in the United States, in trust for the people when they become 
a State, and tliat the sovereignty can not be divested from the hands 
of the trustee without the assent of Congress, it follows, as an in- 
evitable consequence, tliat the Kansas Legislature did not and could 
not confer u})on the Lecompton Convention the sovereign power of 
ordaining a Constitution for the people of Kansas, in place of the or- 
ganic act passed by Congi'ess." 

The days are passed and gone when Mr. Douglas led the fiery as- 
saults of the opposition in the Lecompton controversy. Then it was 
his object to prove that a Territorial Legislature, so far fi'om being 
omnipotent, was powerless even to authorize an election of delegates 
to consider about their own affairs. It was asserted that a convention 
chosen under a Territorial law could make and ordain no Constitution 
which would be legally binding. Then a Territorial government was 
to be despised and spit upon, even when it invited the people to come 
forward and vote on a question of the most vital importance to their 
own interests. But now all things have become new. The Lecomiiton 
dispute has "' gone glimmering down the dream of things that were," 
and Mr. Douglas produces another issue, brand-new from the mint. 
The old opinions are not worth a rush to his present position : it must 
be sustained by opposite principles and reasoning totally different. 
The Legislature of Kansas was not sovereign when it authorized a con- 
vention of the people to assemble and decide what sort of a Constitu- 
tion they would have ; bu.t when it strikes at their rights of property, it 
becomes not only a sovereign, but a sovereign without limitation of 
power. We have no idea that Mr. Douglas is not perfectly sincere, as he 
was also when he took the other side. The impulses engendered by 
the heat of controversy have driven him at different times in opposite 
directions. We do not charge it against him as a crime, but it is true 
that these views of his, inconsistent as they are with one another, v\- 
yf&^&liappen to accord with the interests of the opposition, always give 
to the enemies of the Constitution a certain amount of "aid and com- 
fort," and always add a little to the rancorous and malignant hatred 
with which the abolitionists regard the Government of their own 
country. 

Yes : the Lecompton issue which Mr. Douglas made upon the Ad- 
ministration two years ago is done, and the principles on which we 
were then opposed are abandoned. We are no longer required to fight 
for the lawfulness of a Territorial election held under Temtorial au- 
thority. But another issue is thrust upon us, to "■ disturb the har- 
mony and threaten the integrity" of the party. A few words more 
(perhaps of tedious repetition), by way of showing what that new issue 
is, or probably will be, and we are done. 

We insist that an emigrant going into a Federal Territory retains 
his title to the property which he took with him, until there is some 



POLITICAL ESSAYS AND LETTERS. 227 

prohibition enacted by lawful authority. Mr. Douglas can not deny 
this in the face of his New Orleans speech, and the overwhelming rea- 
sons which support it. 

It is an agreed point among all Democrats that Congress can not 
interfere with the rights of property in the Territories. 

It is also acknowledged that the people of a new State, either in their 
Constitution or in an act of their Legislature, may make the negroes 
within it free, or hold them in a state of servitude. 

But we believe more. We believe in submitting to the law, as de- 
cided by the Supreme Court, which declares that a Territorial Legis- 
lature can not, any more than Congress, interfere with rights of prop- 
erty in a Territory ; that the settlers of a Territory are bound to wait 
until the sovereign power is conferred upon them, with proper limita- 
tions, before they attempt to exercise the most dangerous of all its 
functions. Mr. Douglas denies this, and there is the new issue. 

Why should such an issue be made at such a time ? What is there 
now to excuse any friend of peace for attempting to stir up the bitter 
waters of strife? There is no actual difficulty about this subject in 
any Territory. There is no question upon it pending before Congress 
or the country. AYe are called upon to make a contest, at once un- 
necessary and hopeless, with the judicial authority of the nation. We 
object to it. We will not obey Mr. Douglas when he commands us to 
assault the Supreme Court of the United States. We believe the 
court to be right, and Mr. Douglas wrong. 

II. 

Another edition of these '' Observations " being called for, an op- 
portunity is afforded of adding some thoughts suggested by the at- 
tempted reply of Mr. Douglas, and by some criticisms of a different 
kind which have appeared in other quarters. 

Mr. Douglas charges us with entertaining the opinion that "all 
the States of the Union " may confiscate private property — a doctrine 
which he denounces as a most "wicked and dangerous heresy." He 
championizes the inviolability of property, and invokes the fiery in- 
dignation of the public upon us for ascribing to the States any power 
of taking it away. Now, mark how plain a tale will put him down. 

There is no. such thing and nothing like it on all these pages, from 
the first to the last. Mr. Douglas was merely flourishing his lance in 
the empty air. He had no ground for his assertion, except a most 
unauthorized inference of his own from our denial that the power ex- 
isted in the Territories. The Territories must wait till they become 
sovereign States before they can confiscate property ; that was our 
position. Therefore, says the logic of Mr. Douglas, all the States in 
the Union may do it now. What right had he to make imputations 
of heresy founded upon mere inference, when our opinion on the very 



228 POLITICAL ESSAYS AND LETTERS. 

point was directly expressed in words so plain that mistake was impos- 
sible ? The following sentences occur on page 13 : 

"All free people knoAv that, if they would remain free, they must 
compel the government to keep its hands off their j^rivate property ; 
and this can be done only by tying them up with careful restrictions. 
Accordingly, our Federal Constitution declares that ' no person shall 
be deprived of his property except by due process of law,' and that 
' private property shall not be taken for public use without just com- 
pensation.' It is universally agreed that this applies only to the exer- 
cise of the power by the Government of the United States. We are 
also jirotected against the State governments by a similar provision in 
the State Constitutions. Legislative robbery is therefore a crime 
which can not be committed either by Congress or by any State Legis- 
lature, unless it be done in flat rebellion to the fundamental law of the 
land." 

The close of the same paragraph shows Avhy it was important that 
no attempt should be made to exercise such power by a Territory : 

"Is it not every way better to wait until the new inhabitants know 
themselves and one another ; until the policy of the Territory is set- 
tled by some experience ; and, above all, until the great powers of a 
sovereign State are regularly conferred upon them and properly limited, 
so as to prevent the gross abuses which always accompany unrestricted 
power in human hands ? " 

Mr. Douglas certainly read these passages, for he borrowed a phrase 
from them, and put it into his own speech. He ought to have under- 
stood them. If he both read and understood them, why did he allege 
that this pamphlet favored the dangerous heresy referred to ? Let 
the charity which "thinketh no evil" find the best excuse for him it 
can. 

That the government of a sovereign State, unrestricted and un- 
checked by any constitutional prohibition, would have power to con- 
fiscate private property, even without compensation to the owner, is a 
proposition which will scarcely be denied by any one who has mastered 
the primer of political science. Sovereignty, which is the supreme au- 
thority of an independent State or government, is in its nature irrespon- 
sible and absolute. It can not be otherwise, since it has no superior by 
whom it can be called to account. Mere moral abstractions or theo- 
retic principles of natural justice do not limit the legal authority of a 
sovereign. No government ouglit to violate justice ; but any supreme 
government, whose hands are entirely free, can violate it with impu- 
nity. For these reasons it is that the Saxon race have been laboring, 
planning, and fighting, during seven hundred years, for Great Char- 
ters, Bills of Eights, and Constitutions, to limit the sovereignty of all 
the governments they have lived under. Our ancestors in the old 
country, as well as in America, have wasted their money and blood in 



POLITICAL ESSAYS AND LETTERS. 229 

vain to establish constitutional governments, if it be true that a gov- 
ernment without a constitution is not capable of doing injustice. 
They knew better than that. They understood very well that a sover- 
eign government, no matter by whom its power is wielded, may do 
what wrong it pleases, and " bid its will avouch tlie deed." 

Now, what is the constitutional prohibition which can anywhere 
be found to restrain "popular sovereignty in the Territories" (if 
there be such a thing there) from confiscating any citizen's property ? 
There is none. A Territory has no Constitution of its own ; and no- 
body would be absurd enough to say that it is governed by the Consti- 
tution of another State. Will it be said that the provision in the 
Federal Constitution, which forbids the taking of private projjerty 
without compensation, can be used so as to restrain a Territorial sover- 
eignty ? Certainly not. The Supreme Court have decided (in Bar- 
ron vs. The City of Baltimore, 7 Peters, 234) that the clause referred 
to applies exclusively to the exercise of the power by the Federal Gov- 
ernment. The rule was so laid down by Chief-Justice Marshall. It 
was concurred in by the whole court ; and its correctness has never 
been denied or doubted by any judge, lawyer, or statesman from the 
time of its decision to this day. If, therefore, there be a sovereignty 
in the Territories, it is sovereignty unlimited by any constitutional 
interdict. This implies a power in the Territories infinitely greater 
than that of any other government in all North America. 

The simple and easy solution of all this difficulty is furnished by 
the Supreme Court, and adopted by the Democratic party as the true 
principle governing the subject. It is this : That the Territories are 
not sovereignties, but their governments are public corporations, es- 
tablished by Congress to manage the local affairs of the inhabitants, 
like the government of a city, established by a State Legislature. 
Indeed, there is probably no city in the United States whose powers 
are not larger than those of a Federal Territory. The people of a city 
elect their own mayor, and, directly or indirectly, appoint all their 
municipal officers. But the President appoints the Chief Executive 
of a Territory, as well as the judges. He may send them there from 
any part of the Union, and, in point of fact, they are generally stran- 
gers to the inhabitants when first chosen. They are in no way respon- 
sible to the Territory or its people, but to the Federal Government 
alone, and they may be removed whenever the Piesident thinks 
proper. The Territorial Legislature is sometimes (and only some- 
times) elected by the people ; but why ? Because Congress has been 
pleased to permit it by the organic act. The power that gives this 
privilege could withhold it too. It is always coupled with restrictions 
and regulations which could never be imposed on a sovereignty by any 
authority except its own. The organic act generally prescribes the 
qualifications of voters, and divides the Territory into districts ; and 



230 POLITICAL ESSAYS AND LETTERS. 

the action of the legislative body itself is controlled by the veto power 
of a Governor appointed by the President and removable at his pleas- 
ure. It is too clear for possible controversy that a Territory is not a 
sovereign j)ower, but a subordinate dependency. It can not deprive a 
man of his property without due process of law, or without just com- 
pensation, for two reasons : 1. It has no sovereign power of its own ; 
and, 2. The Federal Government, being forbidden by the Constitution 
to exercise such power itself, can not bestow it on a Territory. The 
Constitution of the United States protects a man's property from 
being plundered by a Territorial Legislature, just as a State Constitu- 
tion protects it from robbery by the authorities of a city corporation. 

It should be noted that, when this question was before the Supreme 
Court of the United States, there was some difference of opinion among 
the judges, on the question whether Congress might, or might not, 
legislate for a Territory in such manner as to take away the right of 
property in slaves. A majority of two thirds or more held the nega- 
tive ; and Mr. Douglas admits that the majority was clearly right. 
But no member of the court expressed the oi)inion, nor was it even 
thought of by the counsel, that the Territories had any such inherent 
and natural power of their own. Indeed, there is no judge of any 
grade or character, nor any writer on law or government, who has ever 
asserted or given the least countenance to this notion of popular or 
any other kind of sovereignty in the Territories. 

Some trouble will be saved in this part of the argument by the fact 
that, since the first publication of this pamjihlet, Mr. Douglas denies 
and repudiates all claim of sovereignty for the Territories. He even 
says that he never did regard them as sovereigns. His words, spoken 
at Woostcr, Ohio, and written out by himself, are these : 

*'I NEVER claimed that Territorial ffovermnenfs were sovereign, or 
that the Territories were sovereign poivers^ 

Of course this is not to be understood as a mere naked denial that 
he had previously used those very words. We have no right to charge 
Mr. Douglas with adopting the exploded system of morality which 
allows a man to cover up the truth under an equivoque. We are bound 
to take his denial fairly, as meaning that he never thought the Terri- 
tories had the rights and powers which belong to sovereign govern- 
ments. Let us see how this assertion will stand the test of investiga- 
tion. 

We do not deny that the article in ''Harper's" is extremely diffi- 
cult to understand. Its unjointed thoughts, loose expression, and 
illogical reasoning have covered it with shadows, clouds, and dark- 
ness. But we will not admit that it has no meaning at all. It is 
scarcely possible to mistake the general purpose of the author. That 
purpose undoubtedly was to prove that the States and Territories, so 



POLITICAL ESSAYS AND LETTERS. 231 

far as concerns their internal affairs, have political rights and powers 
which are precisely equal. In fact, he declares, in so many words, 
that Pennsylvania and Kansas are subordinate to the Constitution 
'Hn the same manner and to the same extent:' He not only levels tlie 
Territories up to the States, but levels the States down to tlie Terri- 
tories. If Kansas has slavery by virtue of the Constitution, he insists 
that, by the same reasoning, Pennsylvania has it too. Now, we know 
Pennsylvania to bo a sovereign ; and if Kansas bo her equal, then 
Kansas must necessarily be a sovereign also. 

JUit look at the last sentence, which is the grand summary of his 
whole doctrine : 

" The principle under our poUlical system is, that every distinct 
political community, loyal to the Constitution and tlie Union, is en- 
titled to all the rights, privileyes, and immunities of self-government, 
m respect to their local concerns and internal polity, subject only to 
the Constitution of the United States." 

Here the States and Territories are placed on a footing of perfect 
equality. There is no distinction made between them. If the States 
are sovereign, so are the Territories Besides, the "rights, privileges, 
and immunities," which he describes as pertaining to every distinct 
political community (that is, to both States and Territories), are sover- 
eign rights, and nothing else. Any community which has the inde- 
pendent and uncontrollable right of self-government, with respect 
to its local concerns and internal polity, must be, quoad hoc, a sover- 
eign. 

Again : Mr. Douglas, in his speech at Cincinnati, made so lately 
as the 9th September last, used the following unmistakable language: 

"Examine the bills and search the records, and you will find that 
the great principle which underlies those measures (the Compromise 
of 1850) IS the right of the people of each State and each Territory, 
wniLE A TERRITORY, to DECIDE tho slavery question for them- 
selves." 

Is not this claiming sovereignty for tho Territories ? Can the 
slavery question be decided without legislating upon the right of prop- 
erty ? And can a subordinate government do that ? If tho Terri- 
tories have power to decide whether a man shall keep his property or 
not, where did the power come from ? Surely not from Congress, 
through the organic acts. They must have it, then, upon what Mr. 
Douglas calls a great principle, and that great princii)le can be nothing 
else than "sovereignty in the Territories." Thus it is seen that Mr. 
Douglas makes a tour to the West, and on his way back he contradicts 
what he said as he went out. 

There are but two sides to this controversy : Tlie Territories arc 
either sovereign powers by natural and inherent right, or else they are 



232 POLITICAL ESSAYS AND LETTERS. 

political corporations, owing all the autliority they possess to the acts 
of Congress which create them. It is not possible to believe that Mr. 
Douglas wrote thirty-eight columns in a magazine to prove the truth 
of the latter doctrine. Nobody but himself and his followers were ever 
accused of denying it. If lie did not deny it, and plant himself ui)on 
the opposing ground of sovereignty in tlie Territories, then there was 
no dispute, or cause of division, between him and the Democratic 
j)arty ; and he has, consequently, been engaged in raising an excite- 
ment about nothing ; trying to toss the ocean of politics into a tem- 
pest, without having even a feather to waft, or a fly to drown. 

But that is not all. Mr. Douglas has continually used the very 
luord sovereignty with reference to the Territories. This sovereignty 
i?i the Territories he has asserted and reasserted so often that the phrase 
is in great danger of becoming ridiculous by the mere frequency with 
which he repeats it. For many months he has not made a speech or 
written a letter for the newspapers on any other subject. It heads 
his elaborate article in "Harper's"; it is vociferated into the public 
ear from the stump ; and it stares at us in great capitals from the 
handbills which call the people to his meetings. Unless it be acknowl- 
edged, he predicts the hopeless division of the party, and even threat- 
ens to refuse its nomination for the presidency. Now, all at once, the 
subject-matter of the whole controversy is admitted to be a nonentity. 
He ** checks his thunder in mid-volley," and owns that there is no 
sovereignty in a Territory any more than in a British colony. Other 
persons may have ridden their hobbies as hard as Mr. Douglas ; but 
since the beginning of the world no man ever dismounted so suddenly. 

"Sovereignty in the Territories," of which we have heard so much, 
is generally, if not always, coupled by Mr. Douglas with the prefix of 
"popular.'" This last word appears to be used for the mere sake of 
the sound, and without any regard whatever to the sense. It does not 
mean that the people or inhabitants of the Territories have any su- 
preme power independent of the laws, or above the regularly consti- 
tuted legal authorities. They can not meet together, count them- 
selves, and say: "We are so many hundreds or so many thousands, 
and we must therefore be obeyed ; the law is in our voice, and not in 
the rules which our Government has made to control us." Something 
like this view was vaguely entertained in times when the Lecompton 
Constitution was opposed. But that is gone by. Mature reflection 
has left mohocracy without a defender. Nobody now insists that the 
right to make or annul laws and constitutions can be exercised in vol- 
untary mass-meetings or at elections unauthorized by law. Mr. Doug- 
las himself says : "It can only be exercised where the inhabitants are 
sufficient to constitute a government, and capable of performing its 
various functions and duties — a fact to be ascertained and determined 
by Congress." The sovereignty, then, is in the government, if it be 



POLITICAL ESSAYS AND LETTERS. 233 

anywhere. But Mr. Douglas now says it is not there ; and he is right. 
That being the case, where is it ? 

Wlien Mr. Douglas, in his speech at Wooster, was repudiating and 
denying the doctrine of sovereignty in the Territories, and resuming 
his old position, that they are not sovereign powers, it would have 
been well to fall back upon something a little more intelligible than 
his reports to the Senate, or his anti-Lecompton letter to Philadel- 
phia. Here is the way he describes sovereignty in his report of 1856 : 

" The sovereignty of a Territory remains in aheyance, suspended 
in the United States, in trust for the people until they shall be ad- 
mitted into the Union as a State." 

What do these words mean, and in what possible way can they help 
us to a knowledge of the matter under consideration ? Aheyance is 
good law French, and signifies the peculiar condition of an estate after 
one tenant has died, and before his successor is competent to take it. 
But what application can it have, even by analogy, to a sovereignty 
which never existed ? It seems, too, that this sovereignty is suspended 
in the United States — that is, hung or dependent from something in 
the United States, and not independent like every other sovereignty 
under heaven. But the most marvelous part of the business is, that 
one government which is sovereign is represented as a trustee of the 
sovereignty cf another government which is admitted not to be sover- 
eign. This is the talk of a man who has too much learning. These 
technical terms of the common law were invented by English convey- 
ancers and real-property lawyers, for the purpose of expressing the 
artificial relations which men sometimes bear to lands, tenements, and 
hereditaments ; but they are wholly inajiplicable to such a subject as 
the sovereignty of a State or nation. We might as well call Terri- 
torial sovereignty a contingent remainder, an executory devise, or a 
special fee tail. 

There is some confusion of ideas on another subject. Mr. Douglas 
and his disciples ascribe to certain Democrats (to the President among 
others) the belief that the Constitution establishes slavery in the Terri- 
tories ; and, to sustain this accusation, they quote from a message in 
which the existence of slavery in the Territories by virtue of the 
Constitution is asserted on the authority of the Supreme Court. Now, 
we are in the wrong, if the expression that a thing exists by virtue of 
the Constitution be equivalent to saying that the Constitution has 
established it. There is not only a substantial, but a wide and most 
obvious difference. The Constitution does not establish Christianity 
in the Territories ; but Christianity exists there by virtue of the Con- 
stitution ; because when a Christian moves into a Territory he can not 
be prevented from taking his religion along with him ; nor can he 



234 POLITICAL ESSAYS AND LETTERS. 

afterward be legally molested for making its princij)les the rule of his 
faith and practice. 

We have said, and Ave repeat, that a man does not forfeit his right 
of proijerty in a slave by migrating with him to a Territory. The 
title which the owner acquired in the State from whence he came 
must be respected in his new domicile as it was in the old, until it is 
legally and constitutionally divested. The proposition is undeniable. 
But the absurd inference which some persons have drawn from it is 
not true, that the master also takes with him the judicial remedies 
which were furnished him at the place where his title was acquired. 
Whether the relation of master and slave exists or not, is a question 
which must be determined according to the law of the State in which 
it was created ; but the respective rights and obligations of the parties 
must be protected and enforced by the law prevailing at the place 
where they are supposed to be violated. This is also true with respect 
to rights of every other kind. Two merchants living in the same town 
may buy tlieir goods in different States. Can it be doubted that the title 
of each depends on the law of the State where he made his purchase ? 
But the law of larceny and trespass is the law of a forum common to 
both, and must necessarily be the same. The validity of a man's mar- 
riage is tried by the standard of the law which prevailed in the coun- 
try where it was solemnized ; but, if he beats his wife, she must seek 
protection from the law of the place where they live. 

Some of Mr. Douglas's partisans, and nearly all of the anti-slavery 
opposition, contend that property in slaves can not exist so as to en- 
title it to the protection of the same laws which secure the right of 
property in other things. For their benefit we shall briefly show how 
impossible it is to admit the distinction which they insist uj^on. 

What is property ? Whatever a person may legally approjiriate to 
his own exclusive use and transfer to another by sale or gift. By the 
laws of the Southern States, negroes are within this definition, and the 
Constitution of the United States not only recognizes the validity of 
the State laws, but it aids in carrying them out. The framers of the 
Constitution, seeing that slaves were liable to one danger from which 
all other property was exempt, namely, that of being seduced away by 
the offer, in other States, of legal shelter from the pursuit of their 
owners, agreed that the Federal Government should guarantee their 
redelivery to the exclusive possession of the persons entitled to them 
as proprietors. The law, then, of the States in which they are and 
the Constitution of the Federal Government, to all legal intents and 
purposes, iDronounce that slaves are property. Beaten here, our ad- 
versaries convert it from a legal to a theological question. But when 
they appeal from the Constitution to the Bible, they are equally dis- 
satisfied with the decision they get. Nothing is left them but that 
•'Higher Law," which has no sanction nor no authority, divine or 



POLITICAL ESSAYS AND LETTERS. 235 

human. Those who reject the Constitution must be content to follow 
guides who are stone-blind. They are men who aspire to be wise above 
what is written, and thereby press themselves down to the extremest 
point of human folly. They turn their backs on all the light which 
the world has, or can have ; they go forth into outer darkness, and 
wander perpetually in a howling wilderness of error. 

But Mr. Douglas is guiltless of this heresy at least. He concedes 
that slaves are precisely like other property, so far as regards the legal 
remedies and constitutional rights of the owner. He professes to take 
the fundamental law of the land for his guide upon that point. Let 
his practice, then, correspond with his faith; let him ''walk worthy 
of the vocation wherewith he is called " ; let him make no more ap- 
peals to popular prejudice for a sovereignty which does not exist ; 
above all things, let him never, by the slightest suggestion, encourage 
any Territorial government to undermine the rights of the citizen by 
legislation which is " unfriendly " to the security of either property or 
life. We must not palter with the Constitution in a double sense, but 
obey it, support it, defend it, earnestly and faithfully, like men who 
believe in it and love it. Whosoever attempts to trifle with its jmn- 
ci2)les, or weaken the obligation of its guarantees, will find sooner or 
later that he has fixed a stain upon his political character which 
*' there is not rain enough in the sweet heavens " to wash out. 

III. 

As briefly as possible, eschewing all matters personal or quasi-])Qr- 
sonal, and without introduction or preface, I shall notice the only 
points in Mr. Douglas's last pamphlet that are worthy of attention. 

He denies that his views on "Sovereignty in the Territories," as 
expressed in ''Harper's Magazine," are inconsistent with those of the 
Supreme Court in the Dred Scott case. I aver, on the contrary, that 
he could not have made such a denial if he had not totally misunder- 
stood either his own opinions or those of the court ; for they are in 
direct conflict with one another. A plain issue of fact is thus made 
up between us, and it is triable by the record. Let us look at it. 

The court, after demonstrating in the clearest manner that the 
Federal Government had no authority or jurisdiction to' abolish slavery 
in a Territory, proceeded to say what Mr. Douglas himself has quoted 
on page 530 of the magazine : 

*' And if Congress itself can not do this — if it is beyond the powers 
conferred on the Federal Government — it will be admitted, we pre- 
sume, that it could not autliorize a Territorial government to exercise 
them. It could confer no power on any local government established 
by its authority to violate the provisions of the Constitution." 

This is in substance the very identical proposition which Mr, Doug- 
16 



236 POLITICAL ESSAYS AND LETTERS. 

las, on page 520, pronounces to be "as plausible as it is fallacious." 
He adds that "the reverse of it is true as a general rule'^ ; and then 
supports his assertion by another assertion the most singular that ever 
was placed on record by any man having the slightest pretensions to 
a knowledge of our government ; namely, that Congress could confer 
upon a Territory such powers, " and only such as Congress can not 
exercise under the Constitution " ! There is the record ; and I am 
perfectly sure that no tolerably sensible man in this nation, except Mr. 
Douglas, will doubt for a moment that it places him and the court in 
an attitude of perfect antagonism. 

But then he says he defended the court in more than one hundred 
speeches. It can scarcely be necessary to say that arguments on a 
question of law are valued according to their loeight, and not accord- 
ing to their number. The count of Mr. Douglas's speeches on the 
Illinois stump was, no doubt, faithfully kept ; but, Avhen he claims 
credit for their orthodoxy, he must show something more than scores 
on a tally-paper. Ue might as well come, with his " Harper" article 
in one hand and a two-foot rule in the other, ready to demonstrate 
his concurrence with the court by showing that it contains two thou- 
sand eight hundred and eighty square inches of surface. Without 
reference to the superficial measure of one or the carefully enumerated 
repetitions of the other, we may safely presume that the quality of 
his spoken arguments was not better than that of his written essay ; 
and in this latter Mr. Douglas not only opposes the court, but, what 
is much worse, he charges it with holding his opinions. This is a deep 
and serious injury ; for how would the judges of that great tribunal 
be able to look their country in the face, if they had ever said that a 
power over private property, forbidden to the Federal Government, 
might be delegated by Congress to a Territorial Legislature ? 

The whole dispute (as far as it is a doctrinal dispute) between Mr. 
Douglas and the Democratic party lies substantially in these two 
propositions : 1. The owner of a slave may remove with him, as with 
other property, into a Territory Avithout forfeiting his title ; 2. The 
government of a Territory has and can have no power to deprive the 
inhabitants of their private property, whether in slaves or anything 
else. 

I. The "axiomatic principle of public law" that a man, going 
from one country into another, retains in the latter (if there be no con- 
flicting law) all the rights of property which he had in the former, is 
so universally acknowledged that nobody thinks worth while to prove 
it. At all times, in all countries, and by all persons, it is taken and 
acted upon as a postulate. I certainly had not, until very lately, the 
remotest suspicion that any man on this side of China would doubt 
it. All the intercourse between tlie States, and with foreign coun- 
tries, depends on it. Without it, the traveler must lose all right to 



POLITICAL ESSAYS AND LETTERS. 237 

bis trunk whenever he passes the border of his own State ; and, when 
a foreigner lands among us, he may be robbed of his purse by the first 
loafer that meets him on the wharf. Importation and exportation Avould 
cease, and the commerce of the whole world would suddenly come to 
a dead pause, if a man might not prove his right to personal property 
in one country by showing that he was the legal owner of it in another 
from whence he brought it. This principle is to the commercial Avorld 
wliat the law of gravitation is to the material universe ; it can not be 
abolished without hurling the whole system into ruin. 

Mr. Douglas does not admit this "axiomatic principle," nor does 
he deny it, though he writes a great deal about it. But he is unusu- 
ally clear and explicit in his assertion that ''it has no application to, 
and does not include, slavery." I insist that he is utterly mistaken. 
Slaves being recognized as property by the Constitution, and made so 
by the local laws of those States which have power to regulate their 
condition, there can be no constitutional or legal reason given for ex- 
cepting them from the operation of a rule which applies to property 
in general. Mr. Douglas's argument in favor of such discrimination 
between slaves and other property is a total failure, and no plausible 
tirgument can ever be made on that side, except one founded on the 
''' Higher Law," or the doctrines taught by that new religion, of which 
Saint Ossawattomie is the apostle and the martyr. 

It has never been held that any kind of property can be introduced 
into a State or Territory whose laws oppose the owner's right ; a 
liquor-dealer in New York can not take brandy to Portland if the 
Maine law forbids it. So a relation formed in one country must 
cease when the parties go to another in which such a relation is ille- 
gal : a Turk may be the lawful husband of many wives in Constanti- 
nople ; but he can not keep them if he changes his residence to West- 
ern Europe or to the American States. So it undoubtedly is with 
slavery. No man in his senses ever contended that a Virginian, going 
to live in Pennsylvania, could take his slaves with him, and keep them 
there in spite of the Pennsylvania law. But if he goes to Kentucky, 
where the laAV is not opposed to slavery, it is equally clear that he re- 
tains all tlie dominion over them which he had before his removal. 
The right of property, no matter where it accrued, continues to be 
sacred and inviolable until it comes in collision Avith a law which di- 
vests it. In a Federal Territory there can be no such collision with 
the right of a slaveholder, because there is no conflicting hiAV there on 
that subject. 

All authority, as well as all reason and common sense, is in favor 
of this doctrine. It was the very point of the Dred Scott case. Dred 
was the slave of Dr. Emerson, in Missouri, and was taken by his mas- 
ter to a Federal Territory, where there was no valid law which either 
sxpressly authorized or expressly interdicted the holding of slaves. 



238 POLITICAL ESSAYS AND LETTERS. 

The court held that Dred Scott's status in Missouri was not changed 
nor the right of his master divested by his removal to the Territory. 
The principle was applied to the case of a slave, just as it would be 
applied to any other projjerty. It is half a score of times repeated by 
the judges that there can be no distinction between slave and other 
property. The other authorities to the same point are conclusive and 
overwhelming. Any person who desires to see all the learning of the 
subject may consult '^Cohh on Slavery,''^ Avhere it is arranged in an 
order so lucid, and discussed with so much ability, that nothing 
further need be desired. 

There is one other authority directly to the point which I cite, not 
only for its own intrinsic value, but because it will probably be es- 
teemed very highly by Mr. Douglas himself. It is an extract from a 
speech of his own, delivered in the Senate on the 23d of February last. 
The legal equality of slave property and other property was then as- 
serted by him in the following fashion : 

''Slaves, according to that decision [the Dred Scott decision], be- 
ing property, stand on an equal footing ivitli all other property. There 
is just as much obligation on the part of the Territorial Legislature to 
protect slaves as every other species of property — as there is to protect 
horses, cattle, dry-goods, liquors, etc. If they have a right to discrimi- 
nate as to the one, they have as to the other ; and whether they have 
got the power of discrimination or not is for the court to decide if 
any one disputes it. . . . If there is no power of discrimination 07i other 
species of property, there is none as to slaves. If there is a power of 
discrimination as to other property — and I think there is — then it 
applies to slave property. In other words, slave property is. o?i an 
equal footing loith all other property.''^ 

In the face of all this, in the teeth of his own words so recently 
uttered, in defiance of the Supreme Court and all judicial authority, 
Mr. Douglas now declares that the "axiomatic principle of public 
law," which enables a man to remove his property from place to place, 
wherever the local law does not forbid its coming, is not applicable to 
slaves. To sustain himself in making this distinction, he produces 
two short passages, both of which have been picked out of one para- 
graph in Story's " Conflict of Laws." These passages (will the reader 
believe it ?) merely show that a slave becomes free when taken to a 
country w/iere slavery is not tolerated by law ! Judge Story cites cases 
decided in England, France, Scotland, and Massachusetts, to prove 
that the laws of those countries, being opposed to slavery, will dissolve 
the relation of master and slave when brought in contact with it. I 
say that slaves may be taken to Kansas or Kentucky without being 
emancii^ated. Mr. Douglas, with great gravity and complacency,, 
answers me that I am wrong, because slavery is not tolerated in Eng- 
land or Massachusetts. No instance of a no)i sequitur so glaring and 
so piilpable has ever before fallen under my notice. 



POLITICAL ESSAYS AND LETTERS. 239 

Mr. Douglas forbears to burden his pages with " the long list of 
authorities " which he sa3's are cited by Judge Story. It is a curious 
fact that not a single one of those authorities touches the question in 
controversy between us. They all, without exception, refer to cases 
in which there was a direct conflict between the law of the country 
where the slave came from and the law of the country to which he 
was taken. No one of the writers referred to has outraged common 
sense by saying or hinting that slaves are made free by mere removal 
without any such conflict of law. The quotation from the opinion of 
the Supreme Court in Prigg vs. Pennsylvania is made with the same 
rashness and with no nearer approach to the point. 

The public will doubtless be somewhat surprised by Mr. Douglas's 
unique mode of dealing with books. For myself, I am inexpressibly 
amazed at it. I have no right to suppose that he intended to insult 
the intelligence of his readers, or to impose upon their ignorance, by 
making a parade of learning and research which he did not possess. 
But how shall we account for quotations like those ? I am obliged to 
leave the riddle unread. 

II. Assuming that slaves taken from a slaveholding State into a 
Territory continue to be slaves, can the rights of their owners be after- 
ward divested by an act of the Territorial Legislature ? They can 
certainly, if the Territories are sovereign States ; if not, not. On this 
question Mr. Douglas has placed himself in a most peculiar position. 
Heretofore he has alternately affirmed and denied the sovereignty of 
the Territories. In his last pamphlet he seems to think the middle 
way safest ; he admits that they are not sovereign, but asserts that they 
have ''the attributes of sovereignty.''^ This is not at all ingenious. It 
must be apparent to the dullest understanding that a government 
which has the attributes of sovereignty is sovereign. 

Sovereignty is the supreme authority of an indej)endent State. No 
government is sovereign which may be controlled by a superior govern- 
ment. As applied to political structures, supremacy and sovereignty 
are convertible terms. To prove this, I will not refer to " the primer 
of political science " ; it is found in all the horn-boohs. Every half- 
grown boy in the country who has given the usual amount of study to 
the English tongue, or who has occasionally looked into a dictionary, 
knows that the sovereignty of a government consists in its uncon- 
trollable right to exercise the highest power. But Mr. Douglas tries 
to clothe the Territories with the "attributes of sovereignty," not by 
proving the supremacy of their jurisdiction in any matter or thing 
whatsoever, but merely by showing that they may be, and some of 
them have been, authorized to legislate within certain limits, to exer- 
cise the right of eminent domain, to lay and collect taxes for Terri- 
torial purposes, to deprive a citizen of life, liberty, or property as a 
punishment for crime, and to create corporations. All this is true 



240 POLITICAL ESSAYS AND LETTERS. 

enough, bnt it does by no means follow that the provisional govern- 
ment of a 'I'erriiory is, therefore, a sovereign in any sense of the word. 
A eity council may legislate, but the (;ity is still subordinate to the 
State which gave it political being. The rigiit of eminent domain is 
delegated every day to private corporations, but no turnpike company 
])retends to bo a sovereign State. The courts in many places have 
authority to create corporations, the sheriff of a county has power to 
im])rison or hang malefactors, and the supervisors of a township can 
levy taxes ; but I think no judge, sheriif, or supervisor has ever claimed 
the i>urple or the diadem on any sucli ground. Governments always 
act by their agents, but the agent, whether it be an individual oUicer 
or a political corpoi-ation, like a city or a Territory, is not in any case 
sovereign, supreme, and uncontrollable. Thus, the arguments of Mr. 
Douglas, Avliicli lie elaborates llirough page after page with wearisome 
pains, are but touched with the finger of investigation, and they dis- 
appear forever : 

"Tho earth hath bubbles, as the water has, 
And these are of them." 

Mr. Douglas, the Senator, the statesman, the struggling candidate 
for the i)residency, should not have borrowed from the lawyerings 
and small wits of the Abolition party the stale, often-repeated, and 
worn-out assertion that emigrants can not have a right to the property 
they take with them, because it will introduce into tho Territory or 
State where they settle all the conflicting laws of the diiferent States 
from whence they came. Nothing could bo less worthy of his high 
place in the councils of the nation, lie ought to know tliat goods of 
various kinds are going continually into each State from all the other 
States of the Union, without producing any such effects. He does 
know that nearly all the jiersonal ]>roi)erty within the limits of a new 
Territory has come there from abroad under the i)rotection of the 
axiomatic principle which he thinks proper to sneer at ; and lie never 
heard that any difficulty or confusion was produced by it. 

I never said that an immigrant to a Territory had a right to his 
property 7ot7Aow^ a remedy ; but I admit that lie must look for his 
remedy to the law of his new domicile. It is true that he takes his 
life, his limbs, his reputation, and his property, and with them he 
takes nothing but his naked right to keep them and enjoy Ihem. He 
leaves the judicial remedies of his previous domicile behind him. It 
is also true that, in a Territory just beginning to be settled, he may 
need remedies for the vindication of his rights above all things else. 
In his new home thei'e may be bands of base marauders, without con- 
science or tho fear of God before their eyes, who are ready to rob and 
murder, and spare nothing that man or woman holds dear. In such 
a time it is quite possible to imagine an abolition Legislature whose 
members owe their seats to Sharp's rilles and the money of the Emi- 



POLITICAL ESSAYS AND LETTERS. 241 

gration Aid Society. Very possibly a Legislature so chosen might em- 
ploy itself in passing laws imfriendly to the rights of honest men, and 
friendly to the business of the robber and the murderer. I concede 
this, and Mr. Douglas is entitled 'to all the comfort it affords him. 
But it is an insult to the American people to suppose that any com- 
munity can be organized within the limits of our Union Avho will 
tolerate such a state of things. If it shall ever come to that, Mr. 
Douglas may rest assured that a remedy will be found. No govern- 
ment can possibly exist which will allow the right of property to go 
unprotected ; much less can it suffer such a right to be exposed to 
" unfriendly legislation." 

Mr. Douglas thinks that a Territory may exclude slaves, or inter- 
fere with the rights of the owners, because, in some of the organic 
acts, the general grant is made of authority over ''all rightful subjects 
of legislation." This is not the least unaccountable of his strange 
notions. In such an act nothing is taken by implication, nor could 
the power in question be given even by express words, for it is forbid- 
den by the Constitution to the Federal Government itself. The logic 
so peculiar to Mr. Douglas, which infers the power to give from the 
want of possession, may sustain such a construction of a statute ; but 
nothing else will. 

A ''plan" relating to the Territories was offered to Congress by 
Mr. Jefferson in 1784 It was a mere projet, in the form of resolu- 
tions, embodying certain abstract propositions in anticipation of set- 
tlements yet to be made in the wilderness. It did not establish any 
government, temporary or permanent, but provided how the settlers, 
when they would go there, might petition Congress and get themselves 
organized. There is not a word in any of the resolutions about sover- 
eignty or slavery. They were passed in April, 1784, but three years 
afterward they were repealed ; the whole "plan" ioas rejected hy Con- 
gress, and another plan totally different (the famous Ordinance of 
1787) was substituted in its place. Mr. Douglas, in " Harper," re- 
ferred to this plan, and expended column after column of dreary com- 
ment upon it. It was ridiculously inapplicable to his argument ; like 
his quotation from Story, it had no more to do with the subject before 
him than the Edict of Nantes. I referred to it merely as showing how 
he could wander from the point. But he allows his righteous soul to 
be vexed at me for saying it was rejected. It loas rejected ; for, though 
Congress assented to the resolutions when first offered, the plan was 
repudiated before a single principle of it ivent into operation. Mr. 
Douglas says that it "stood on the statute-book unrepealed and irre- 
pealaMe.'^ I take it for granted that he would not have made such 
an allegation if he had known what I now tell him : that it was, in 
fact, repealed in 1787 by the unanimous vote of the whole Congress. — 
(Journal of Congress, vol. iv, page 754.) 



24:2 POLITICAL ESSAYS AND LETTERS. 

I have regarded this dispute as on a question of constitutional law, 
far, very far, above party politics. But I am tempted to vindicate the 
Democracy from the imputation which Mr. Douglas casts upon that 
party when he claims the Cincinnati platform as favoring his creed. 
It contains no word of the kind. I may also add that every Democrat 
who desires to preserve " the unity of the faith in the bonds of peace " 
will disapprove the odious charge which Mr. Douglas flings at the 
President, of agreeing with him on this subject. The calm, clear 
judgment of Mr. Buchanan was never for a moment imposed on, nor 
his love for the Constitution shaken, by this heresy. Neither in his 
Sanford letter, nor in his letter of acceptance, nor his inaugural ad- 
dress, nor in any other paper, public or private, did he ever give the 
remotest countenance to such doctrine. He has often said that the 
people of the Territories had the right to determine the question of 
slavery for themselves, but he never said nor intimated that they could 
do so before tliey were ready to form a State Constitution. 

I will not follow Mr. Douglas any further at present. But I must 
not be understood as assenting to the numerous assertions upon which 
I am silent. There is scarcely a sentence in this whole pamphlet which 
does not either propound an error, or else mangle a truth. I do not 
charge him, however, with willful misstatements of either law or fact. 



LETTER TO JUDGE HOAR. 

Washington, January 18, 1S70. 

Sir : I was not present in court yesterday to hear your remarks on 
Mr. Stanton, but to-day I was shown a newspaper report of them, which 
I presume to be perfectly accurate. The following paragraph struck 
me with much surprise : 

"■ But it is not of the lawyer, eminent as lie was in the science and 
practice of the law, that men chiefly think as they remember him. 
His service to mankind was on a higher and wider field. He was ap- 
pointed Attorney-General by Mr. Buchanan on the 20th of December, 
1860, in one of the darkest hours of tlie country's history, when the 
Union seemed crumbling to pieces without an arm raised for its sup- 
port, when ' without ' the public councils ' was doubting, and within 
were fears ' ; when feebleness and treachery were uniting to yield Avhat- 
ever defiant rebellion might demand, and good men everywhere were 
ready to despair of the republic. For ten weeks of that winter of 
national agony and shame, with patriotism that never wavered, and 
courage that never quailed, this true American, happily not wholly 
alone, stood manfully at his post, * between the living and the dead,' 



POLITICAL ESSAYS AND LETTERS. 243 

gave what nerve lie could to timid and trembling imbecility, and met 
the secret plotters of their country's ruin with an undaunted front, 
until before that resolute presence the demons of treason and civil 
discord appeared in their own shape, as at the touch of Ithuricl's 
spear, and fled baffled and howling away." 

This statement was carefully and deliberately written down before 
you delivered it. You spoke for the American bar as its organ and 
official head, and you addressed the highest judicial tribunal in the 
world, knowing that your words were to go upon its record and re- 
main there forever. I take it for granted that under these circum- 
stances no earthly temptation could make you deflect a hair's breadth 
from the facts as you understood and believed them. The inevitable 
conclusion is that you must have in your possession, or within your 
reach, some evidence which convinces you that what you said is the 
truth, and nothing but the truth. I am sure you will excuse me for 
asking you to say what that evidence is. 

The passage I have transcribed from your address sounds like the 
authoritative summary of an historian as he closes the most interest- 
ing chapter of his book. You can hardly consider the curiosity im- 
pertinent that prompts an American citizen to inquire what your 
judgment is founded upon. Besides, I have some friends whose repu- 
tation is deeply involved in the affairs you pronounce upon with so 
much confidence. Moreover, I have a personal concern in your re- 
marks, for I was one of Mr. Stanton's colleagues, and am as liable as 
any of them to be taken, on your statement, for one of the '' secret 
plotters of their country's ruin." Be pleased, therefore, to give me the 
information I seek. 

Do you find on the records of your office anything which shows 
that Mr. Stanton was in violent or dangerous conflict with " demons 
of treason and civil discord," or any other description of demons ? 

Did Mr. Stanton himself ever lay claim to the heroic character 
you ascribe to him, or declare that he had performed those prodigious 
feats of courage while he was in Mr. Buchanan's Cabinet ? 

Has any other person who was in a condition to know the facts 
ever given you that version of them which you repeated to the court ? 
If yes, who are the witnesses ? 

What particular danger was he exposed to which tested his valor, 
and made his '' undaunted front " a thing so wonderful in the dcscriji- 
tion of it ? 

Whose ''feebleness and treachery" was it that united '' to yield 
whatever defiant rebellion might demand " ? And how did Mr. Stan- 
ton's courage and patriotism dissolve the combination, or defeat its 
purposes ? 

You say that for ten weeks " he stood manfully at his post be- 
tween the living and the dead." Now, when the first law officer of 



244 POLITICAL ESSAYS AND LETTERS. 

the United States addresses the Supreme Court on a sj)ecial occasion, 
and after elaborate preparation, he is presumed to mean something by 
what he says. How is this to be understood ? You certainly did not 
intend to assert merely that he stuck to his commission as long as he 
could, and gave it up only when he could not help it. Standing mmi- 
fully at a post of any kind, and especially when the stand is made be- 
tween the living and the dead, has doubtless a deep significance, if 
one could but manage to find out what it is. Who were the dead and 
who were the living ? And how did it happen that Mr. Stanton got 
between them ? What business had he between them, and why did 
he stay there for ten weeks ? These questions you can easily answer, 
and the answer is needed, for in the mean time the conjectural inter- 
pretations are very various, and some of them injurious to the dead 
and living aforesaid, as well as to Mr. Stanton, who, according to your 
re2')resentation, stood between them. 

I can comprehend the well-worn simile of Ithuriel's spear, but I do 
not see what on earth was the use of it, unless you thought it orna- 
mental and original ; for you make Mr. Stanton by his mere presence, 
without a spear, do what Ithuriel himself could not do with the aid of 
that powerful instrument. The angel with a spear compelled a demon 
to lay aside his disguise, while the mortal man dealt with many demons, 
and not only made them all appear in their proper shape, but drove 
them "baffled and howling away " out of his " resolute presence." I 
do not object to this because the figures are mixed, or because it is an ex- 
travagant outrage on good taste. The custom of the time allows men 
who make eulogies on their political friends to tear their rhetoric into 
rags ; and if you like the tatters, you are welcome to flaunt them ; 
but I call your attention to it in the hope that you will talk like a man 
of this world, and give us in plain (or at least intelligible) prose, a 
particular account of the very important transactions to which you 
refer, together with the attendant circumstances. I suppose you have 
no thought of being taken literally. Your description of Mr. Stanton 
conjuring demons is only a metaphorical way you have of saying that 
he frightened certain bad men. I beg you to tell me who they were, 
and how he scared them. 

I repeat that you are not charged, and, in my opinion, could not 
be justly charged, with the great sin of fabi'icating statements like 
these. You have no doubt seen or heard what you regard as sufficient 
proof of them. What I fear is, that you have been misled by the false 
accounts which partisan writers have invented, not to honor Mr. Stan- 
ton, but to slander others. 

If you had known the truth concerning his conduct while he was 
Attorney-General, and told it simply, you might have done great 
honor to his memory. He was, at that time, a regular-built, old- 
fashioned. Democratic "Union-saver." Ho believed in the Constitu- 



POLITICAL ESSA YS AND LETTERS. 245 

tion as the fundamental law of the land ; as the bulwark of public lib- 
erty ; and as the only bond by which the States could be rightfully 
held together. He regarded his official oath as a solemn convenant 
with God and his country, never to be violated under any circum- 
stances, and he had a right wholesome contempt for that corrupt code 
of morality which teaches that oaths are not binding u])on the rulers of 
a free country, when they find it inconsistent with their interest to 
keep them. He uniformly behaved with ''modest stillness and hu- 
mility," except when his opinion Avas asked, and then he spoke with 
becoming deference to others. From that part of his life, at least, 
you might, by telling it truly, have derived a " lofty lesson" indeed. 
But this quiet, unpretending, high-principled Democratic gentleman 
is converted by your maladroit oratory into a hectoring bully of the 
abolition school ; rampaging through the White House and around 
the department, trying to frighten people with big looks. 

I beseech you to examine your authorities. If you still think 
them sufficient to sustain you, I can not doubt your willingness to 
communicate them for the scrutiny of others who are interested. If, 
on the contrary, you shall be satisfied that you have made a great mis- 
take, then justice to all parties, and especially to the subject of your 
well-meant but unfortunate eulogy, requires some amends to bo made. 
It will be for you to say whether you will, or will not, ask the court 
for leave to withdraw that part of your speech from the record. 

I am, very respectfully, yours, 

J. S. Black. 



LETTERS TO HENRY WILSON. 



To the Hon. Henry Wilson, Senator from Massachusetts : 

In the February number of the " Atlantic Monthly " appeared an 
article of yours entitled "Edwin M. Stanton." It contains some 
statements which are very wonderful, if true ; and, if false, they ought 
to be corrected. I ask you to review this production in the light of 
certain facts which I shall now take the liberty to mention. 

My principal object is to satisfy you that you have wholly misun- 
derstood the character of Mr. Stanton, and grossly injured him by 
what you supposed to be panegyric. But before I begin that, suffer 
me to correct some of your errors about other persons. 

In your vituperative description of the Buchanan Administration, 
you allege that "the President and his Attorney-General surrendered 
the Government's right of self-preservation " and " pronounced against 



246 POLITICAL ESSAYS AND LETTERS. 

its power to coerce a seceding State." You refer manifestly to the opin- 
ion of the Attorney-General, dated the 20th of November, 1860, defin- 
ing the duties and powers of the President, and to the public acts of the 
President which show that he took the advice of the law department 
and squared his conduct accordingly. Upon this ground mainly, if 
not entirely, you denounce that Administration as not only weak and un- 
patriotic, but willfully wicked and treasonable. I jiropose to show that 
you have committed a cardinal error, if not something worse. The 
coarse way in which you charge the dead as well as the living with the 
highest crimes would justify a reply in language much plainer than I 
intend to use. 

Your modes of thinking and speaking on subjects of this kind are 
so loose and inaccurate, that it is necessary to furnish you with an 
idea of certain elementary principles which to most other men are too 
familiar to talk about: 

1. The Government of the United States is the Constitution and 
Imvs. 

2. The preservation of the Government consists in maintaining 
the supremacy of the Constitution and laws. 

3. For this purpose certain coercive powers are delegated to the 
Executive, which he may use to defend the laws when they are re- 
sisted. 

4. But in this country, as in every other, except where the gov- 
f^-^nment is an absolute despotism, the authority of the Chief Magis- 
trate is limited and his hands are tied up by legal restriction, to pre- 
vent him from using physical force against the life, libert}^, and prop- 
erty of his fellow-citizens, unless in certain prescribed ways and on 
proper occasions. 

5. He is bound by his inaugural oath to keep within those limits : 
if he breaks the laws, he destroys the Government ; he can not stab 
the Constitution in the back because he is afraid that somebody else 
will strike it in the face. 

G. The Government of the United States, within its proper sphere, 
is a sovereign, as much as the States are sovereign within their 
sphere. It acts i^nmediately upon the people, and claims their direct 
obedience to its laws. As a State can not make war upon a city, 
county, or town, and put all its inhabitants to the sword, because some 
of them have acted or threatened to act illegally, so the General Gov- 
ernment is also restrained from exterminating the whole popula- 
tion of a State for the offenses, actual or intended, of some who live 
among them. 

7. The so-called ordinances of secession in 1860-'61 were the dec- 
larations of certain persons who made them that they intended to dis- 
obey the laws of the United States. It was the duty of Congress and 
the President to see that forcible resistance to the laws, when actually 



POLITICAL ESSAYS AND LETTERS. 247 

made, should be met by a counter-force sufficient to put it down ; but 
neither Congress nor the President had authority to dechirc war and 
begin hostilities, by anticipation, against all the people at once, and 
put them all in the attitude of public enemies Avithout regard to 
their personal guilt or innocence. 

The opinion of the Attorney-General, which you have garbled, and 
the messages of President Buchanan, assert these principles in plain 
English words. We held that the whole coercive power of the United 
States, delegated by the Constitution to every branch of the Govern- 
ment, judicial, legislative, and executive, including its military and 
naval force, might and ought, in the appointed way, to be used to 
maintain the supremacy of the laws against all opposers, to hold or 
retake the public property and to collect the revenue. But we as- 
serted, also, that powers not given ought not to be usurped, and that 
war upon a State, in the then circumstances of the country, would 
be not only usurpation, but destruction of the Union. 

Of course, you can not be so ignorant of the fundamental law as 
not to know that our exposition of it was perfectly sound and correct. 
Yoti never pretended — no man with sense enough to know his right 
hand from his left ever will pretend — that the President had constitu- 
tional or legal authority to make an aggressive war against the States 
by his own act, nor had Congress any such power. But you think I 
ought not to have answered the President's questions truly, and that 
he ought not to have been influenced by constitutional scruples. 
That is the rub. Tliere is no dispute — never was, and never can be — 
about the law ; but Mr. Buchanan's wickedness and treason consisted 
in obeying it when you think he ought to have broken it. For this 
cause you try to excite against his memory those bad party passions 
by which he was hounded and persecuted daring all the last years of 
his life. 

I will make no effort to convince you that Mr. Buchanan was 
right in standing by the Constitution which he had sworn to preserve, 
protect, and defend. That I know would be altogether hopeless. 
The declared admirer of John Brown, the political ally of Jim Lane, 
the partisan of Baker, the advocate of general kidnapping and special 
murder by military commissions, the open supporter of measures 
which abolish the right of trial by jury and build up an Asiatic despot- 
ism on the ruins of free government — such a man would entirely mis- 
understand the reason Csimple as it is) upon which I put the justifica- 
tion of a dead President for refusing to perjure himself. But, if I 
can not justify, perhaps I can excuse him. 1 will offer some apolo- 
gies which may possibly disarm your censure, or at least mitigate the 
severity of your righteous indignation. 

In the first place, Mr. Buchanan was born of Christian parents and 
educated in a Christian community. All his lifetime, and at the mo- 



248 POLITICAL ESSAYS AND LETTERS. 

ment of his death, he felt that fear of God which a respectable avithor- 
ity has declared to be, not weakness, but the ''beginning of wisdom " 
and the only source of true greatness. The corruptions introduced 
into the Church by the political preachers of New England never 
reached him. He was simply a Christian man, and a firm believer in 
the morality taught by the New Testament. Now, you know (at all 
events you must have heard) that persons who adhere to that kind of 
religion always contract a habit of regarding the violation of an oath 
with inexjiressible horror, whether it be committed by an officer or a 
witness ; whether the object of it be to destroy the character of a polit- 
ical opponent, to promote the interests of a party, or to enslave a 
State. All kinds of false swearing are alike to them. They stub- 
bornly reject the reasoning which seeks to convince them that observ- 
ance of oaths by magistrates and legislators is a mere question of ex- 
pediency and self-interest, varying with circumstances. Mr. Buchanan 
being a man of this class, I submit the question whether his prejudices 
iigainst perjury (unreasonable as you may think them) are not enti- 
tled to some little respect. 

Apart from the religious obligation of his oath, he loved the Con- 
stitution of his country on its own account, as the best government 
the Avorld ever saw. I do not expect you to sjimpathize with this feel- 
ing ; your affections are otherwise engaged. But can you not make 
allowance for his attachment to that great compact which was framed 
by our forefathers to secure union, justice, peace, State independence, 
and individual liberty for ourselves and our posterity ? 

Another thing : All his predecessors governed their conduct by 
similar notions of fidelity to the Constitution. In peace and in war, 
in prosperity and disaster, through all changes, in spite of all threats 
and provocations, they had kept their oaths, and assumed no ungranted 
power. It was the most natural thing in the Avorld for Mr. Buchanan 
to follow the example of such men as Washington, Madison, and Jack- 
son, rather than the precepts of those small but ferocious politicians 
who thought their own passions and interests a ** higher law " than 
the law of the country. 

Again : All his advisers — not I alone, but all of them — expressed 
the clear and unhesitating opinion that his view of the law on the sub- 
ject of coercing States was right. His legal duty being settled, not one 
among them ever breathed a suggestion that he ought to violate it. 

Besides : there was a question of natural justice, as well as legal 
propriety, involved in making war upon the States at that time. 
Nine-tenths of the Southern people were thoroughly devoted to the 
Union, and had committed no sin against it, even in thought. Would 
it have been well to bring the visitation of fire, sword, and famine 
upon whole communities of innocent persons ? You will probably 
answer this in the affirmative. You think that no opportunity to 



POLITICAL ESSAYS AND LETTERS, 2l9 

shed blood and plunder the property of men, women, and children 
who live beyond the Potomac ought ever to be lost. Mr. Buchanan 
might have seized that occasion to imitate John Brown on a large 
scale, and thus made himself an '^heroic character" in your eyes. 
But you must be aware that he would have been regarded by the 
mass of men as a moral monster ; and the admiration of yourself and 
your party in Massachusetts would have been but a poor compensa- 
tion for the eternal weight of infamy with which the rest of the world 
would have loaded his memory. 

Further still : You know that the General-in-Chief of the Army 
had reported five companies as the whole available force for ojierations 
in the South, and you never proposed to increase it. Yet you wanted 
war. Why ? You must have desired the Union cause to be disgraced 
and defeated, for nothing else could have resulted from such a war as 
you now abuse Mr. Buchanan for not making. You and your party 
in Congress were strictly non-committal. You did not recommend 
peace, nor offer your support to war. You would take neither the 
olive-branch nor the sword. You refused to settle, and you made no 
preparation for a contest. But you reveal now what was then the 
secret desire of your heart — that the Administration, in defiance of 
law and without means, would declare war on its own responsibility. 
This would have been an expulsion of the Southern States from the 
Union, for it would have placed all their people beyond the protec- 
tion of Federal law ; they would necessarily rise in self-defense ; our 
little army of five hundred men would perish in a fortnight ; and be- 
fore the 4th of March the independence of the South would be a set- 
tled fact. 

Moreover, as you and your party friends in Congress did not call 
for a war, the President had a right (had he not ?) to suppose that 
you approved of his determination to keep the peace. Perhaps your 
approval of his conduct is not very powerful evidence of its justice or 
legality. But here is the point : How can you have the face to de- 
nounce a man as a criminal, after he is dead, for public acts which 
you consented to by your silence at the time they were done ? 

But this is not all. You give your unqualified approbation to 
Mr. Lincoln's Administration. I do not say you were true to it (for I 
believe the evidence is extant which proves that you were not) ; but 
you have lauded it as strong and faithful. Mr. Lincoln adopted pre- 
cisely the same legal principles with regard to the coercion of the 
States that Mr. Buchanan had acted upon, and carried the policy of 
reconciliation infinitely beyond him. He avowed his intention not to 
make war or provoke it as plainly as his predecessor had ever done. 
Neither he nor his Attorney-General asserted their constitutional au- 
thority to commence aggressive and general hostilities for any cause 
then existing. He received commissioners from the Southern States 



250 POLITICAL ESSAYS AND LETTERS. 

lie pledcrcd himself not to retake the forts, arsenals, dock-yards, cus- 
tom-houses, etc., then in the hands of the secessionists. He promised 
to continue the mail service in the seceded States if they would permit 
him. He went further still, and publicly assured the Southern peo- 
ple that he would not irritate them by attempting to execute the Fed- 
eral laws at any place where it would be specially offensive to them. 
All these were concessions to the South which Mr. Buchanan had 
steadily refused to make ; and if he had made them, you would no 
doubt have j)ronounced them treasonable. But the Lincoln Administra- 
tion did not stop here. That Cabinet voted six to one in favor of sur- 
rendering Fort Sumter — Mr. Blair being the only dissentient. The 
President, if ho did not yield to the majority, must have wavered a 
considerable time ; the Secretary of State was so sure of him, that he 
caused the South Carolina authorities to be informed that the fort 
ivould he given up. You will not deny these facts, but you will con- 
tinue, as heretofore, to say that the Buchanan Administration weakly 
and wickedly favored secession, while that of Lincoln was firmly and 
faithfully ojjposed. The man who involves himself in such inconsist- 
encies, whether from want of information, want of judgment, or want 
of veracity, is not qualified to write on an historical subject. 

I have given more time and space than I intended to this part of 
your paper. But I am addressing a man of peculiar character. To a 
person whose moral perceptions are healthy and natural, I could make 
my defense in a breath. But being required to apologize for not vio- 
lating a sworn duty, some circumlocution is necessary. 

Your mere railing accusations against Mr. Buchanan are hardly 
worth a reply. The j^lace he is destined to occupy in history does not 
depend on anything you can say or foi'bear to say. You have no 
knowledge whatever of his character. Morally, intellectually, and 
politically, he was altogether too much of a man for you to compre- 
hend. The world will look for its information concerning him to the 
acts of his life, and to the testimony of men who knew him and had 
minds large enough to take his dimensions. I would not offer you the 
word of a Democrat ; but among those who were with him continually 
during the last weeks of his Administration are some who have since 
supported radical measures with a zeal" warm enough to make them 
good witnesses. Let General Dix speak his knowledge and say 
whether he saw anything of the treason, the weakness, or the Avicked- 
ness which you impute so boldly and so recklessly. Mr. King, the 
Postmaster-General, can not be ignorant of any important fact which 
bears on this question. Mr. Holt has already, on several occasions, 
delivered his testimony. It is a fervent tribute to the "wise states- 
manship and unsullied patriotism " of Mr. Buchanan, as well as to 
" the firm and generous support " which he constantly gave to men and 
measures approved by his conscience. The proofs of his great ability 



POLITICAL ESSAYS AND LETTERS. 251 

and his eminent public services are found on every page of his coun- 
try's history from 1830 to 18G1. During all that long period he 
steadily, faithfully, and powerfully sustained the principles of free 
constitutional government. This nation never had a truer friend, nor 
its laws a defender who would more cheerfully have given his life to 
save them from violation. No man was ever slandered so brutally. 
His life's life was literally lied away. In the last months of his ad- 
ministration he devoted all the energies of his mind and body to the 
great duty of saving the Union, if possible, from dissolution and civil 
war. He knew all the dangers to which it was exposed, and it would, 
therefore, be vain to say that he was not alarmed for his country ; but 
he showed no sign of unmanly fear on his own account. He met all 
his vast responsibilities as fairly as any Chief Magistrate we ever had. 
In no case did he shrink from or attempt to evade them. The accusa- 
tion of timidity and indecision is most preposterous. His faults were 
all of another kind ; his resolutions once formed were generally im- 
movable to a degree that bordered on obstinacy. On every matter of 
great importance he deliberated cautiously, and sometimes tried the 
patience of his friends by refusing to act until he had made up an 
opinion which he could live and die by. These characteristics explain 
the fact that his whole political life, from the time he entered Con- 
gress until he retired from the presidency — all his acts, speeches, and 
papers — have a consistency which belongs to those of no other Ameri- 
can statesman. He never found it necessary to cross his own path or 
go back upon his pledges. His judgment Avas of course not infallible ; 
and in 1861 he announced a determination with reference to the 
South Carolina commissioners which I and others thought erroneous 
but unchangeable. Most unexpectedly, and altogether contrary to 
his usual habit of steadfast self-reliance, he consented to reconsider 
and materially alter his decision. This change, and all the circum- 
stances which brought it about, were alike honorable to his under- 
standing and his heart. I admit that you were not the first inventor 
of these slanders ; but you ought to know that it does not become a 
man in your station to take up an evil report and repeat it, like a 
parrot, Avithout stopping to consider whetlier it has any foundation or 
not. 

You are not content with traducing Mr. Buchanan himself ; you 
take up the heads of departments who served under him, and deal out 
your denunciations upon nearly all in succession. 

The Secretary of the Treasury, you say, Avas deranging the finances 
and sinking the national credit. Upon whom does this fall ? "Was 
it Cobb, or Thomas, or Dix that committed that crime ? The charge 
is equally untrue whether made against one or another. You never 
saAV a scintilla of evidence to justify it. 

You tell your readers that the Secretary of War scattered the army 
17 



252 POLITICAL ESSAYS AND LETTERS. 

and sent guns and munitions to the secessionists. Whatever Mr. 
Floyd may liave done in his lifetime, it is well established that he 
never did this. Numerous charges have been, and others might be, 
made against that officer with some show of truth. It is curious that 
your appetite for scandal could be satisfied only by selecting one which 
is well known to be unfounded. 

You inform the country that the Secretary of the Navy rendered 
that arm poiucrless. This is not a new charge. It has been made 
several times before, and solemnly investigated more than once. Not 
only has it never been supported, but it has uniformly been met by 
such evidence of Mr. Toucey's perfect integrity that every resiiectable 
man among his political enemies acquits him without hesitation. In 
your i)rcsent reiteration of it, you are simply bearing false witness 
against your neighbor, in flat violation of the ninth commandment. 

But perhaps the most extraordinary of all your averments is, that 
the Secretary of the Interior permitted the robbery of trust funds. 
You did not mean it to be understood that a robbery occurred which 
he knew nothing about, and of which he was, therefore, as innocent as 
any other man. You intended to make the impression tliat he willfully 
gave his permission to the criminal asportation of the funds in question, 
made himself an accessory to the felony before the fact, and was as 
guilty as if he had done it with his own liands. You could not possi- 
bly have believed this, unless you perversely closed your eyes against 
the light of plain truth. All the circumstances of the transaction to 
which you refer are as well understood as anything in the history of 
the country. A committee of Congress, consisting of members op- 
posed to the Secretary, examined the evidence when it was fresh, and 
reported upon it. The correctness of their judgment has never been 
impugned. In the face of these recorded and well-known facts, you 
deliberately sit down and write out, or get somebody to write and 
])ublish to the world on your authority, the accusation that Mr. 
Thompson has committed an offense which should make him infa- 
mous forever. The force of medacity can go no further. I admit 
that you are a loyal man, in the modern sense of the word, and a Sen- 
ator in Congress from a most loyal State ; and it is equally true that 
Mr. Thompson was a rebel ; that he was for years an exile from his 
homo and country, pursued wherever he went by an Executive procla- 
mation which put a price on his head. This gives you an immense 
advantage over him. But the fact is still true that no department of 
this Government was ever managed more ably or more faithfully than 
the Interior while he was at the head of it. You may have all the 
benefit of loyalty, and you may weigh him down with the huge burden 
'of rebellion ; nevertheless, his mental ability, good sense, and common 
honesty put him so immeasurably far above you, that you will never 
in ,this life be able to get a horizontal view of his character. 



POLITICAL ESSAYS AND LETTERS. 253 

I come now to the more important part of your article, which di- 
rectly concerns Mr. Stanton. Your attacks upon Buchanan, Toucey, 
and Thompson might be safely passed in silence, but the character of 
Stanton must utterly perish if it be not defended against your praise. 

You give us the first information we ever had that Mr. Stanton, 
though acting with the Democratic party, was an abolitionist at heart 
almost from his earliest youth. For this fact you vouch his declaration to 
Judge ChasC more than thirty years ago, at Columbus, Ohio ; and you 
attempt to corroborate it by citing his association at Washington with 
Dr. Bailey and other abolitionists. If you tell the truth, he Avas the 
most marvelous impostor that ever lived or died. Among us, his po- 
litical principles were thought to be as well known as his name and 
occupation. He never allowed his fidelity to be doubted for one mo- 
ment. It was perfectly understood that he had no affinities whatever 
Avith men of your school in morals or politics. His condemnation of 
the abolitionists was unsparing for their hypocrisy, their corruption, 
their enmity to the Constitution, and their lawless disregard for the 
rights of States and individuals. Thus he won the confidence of 
Democrats. On the faith of such professions we promoted him in his 
business, and gave him office, honor, and fortune. But, according to 
your account, he was all the while waiting and hoping for the time to 
come when he could betray the Constitution and its friends into the 
cruel clutches of their enemies. For this cold-blooded and deliberate 
treachery you bespeak the admiration of the American people. You 
might as well propose to canonize Judas Iscariot. 

I maintain, on the other hand, that he was Avhat he seemed to be, a 
sound and sincere friend, political and personal, of the men who show- 
ered their favors on his head, lie had at least the average amount of 
attachment for " the Constitution of the United States, and for the 
peace, good order, and happiness of the same." As a necessary conse- 
quence, he dreaded the dishonest and destructive rule which he fore- 
saw that you would be sure to establish as soon as you could. His 
democracy did not cease when the war opened. In the summer of 
18G1, when your anti-constitutional principles began to be practically 
carried out by the kidnapping of innocent citizens, by the suppres- 
sion of free speech, and by the enslavement of the press, he imprecated 
the vengeance of God and the law upon the guilty authors of those 
crimes with as much energy as any Democrat in the nation. Only a 
short time before his appointment as Secretary of War his love of lib- 
erty and legal justice impelled him to curse Mr. Lincoln himself with 
bitter curses. He called him by contemptuous names, and with sim- 
ian if not with "swinish phrase soiled his addition." I admit that he 
changed these sentiments afterward, but I deny that he had adopted 
your way of thinking while he pretended to concur in ours. His 
conversion was a real one, produced by what he regarded as **good 



254 POLITICAL ESSAYS AND LETTERS. 

and sufficient reasons him thereunto moving," and it was accompa- 
nied, or immediately followed, by a corresponding change of his party 
attitude. lie was not what you make him out, a mere fawning hyjoo- 
crite. 

The issue is plainly made. The friends of Mr. Stanton will not 
permit you to gibbet him in the face of the world, after death has 
disarmed him of the power of self-defense. You must prove the in- 
jui'ious allegations you make, or else accept the just consequences. If 
the Chief-Justice will say that he knows Mr. Stanton to have been 
''in entire agreement" with the Abolition party thirty years ago, his 
testimony may silence denial. But you must not trifle with us ; we 
will hold you to strict proof ; hearsay evidence will not be received ; 
least of all will the fact be admitted upon the second-hand statement 
of a person who thinks, as you manifestly do think, that deception, 
fraud, and false pretenses are an honor to the man who jiracticed 
them. 

Xext in chronological order is your assertion that Mr. Stanton, 
while yet a private citizen, advised Mr. Buchanan that it was the duty 
and the right of the Federal Government to coerce seceding States ; 
that is to say, make war against all the inhabitants of every State in 
which an ordinance of secession had been or should be passed. Now, 
mark how plain a tale will put you down. Mr. Stanton never was con- 
sulted on that subject by the President until after he was Attorney-Gen- 
eral ; and he never at any time gave such advice as you put into his 
mouth, lie never entertained any opinion of that kind, for he was a 
lawyer of large capacity and could not believe an absurdity. He had 
too much regard for his professional character to maintain a legal 
proposition which he knew to be false. He certainly would not have 
so debased himself in the eyes of the Administration with whom he 
was particularly desirous, at that time, to stand well. 

On this point I wish to be very distinct. I aver that Mr. Stanton 
thoroughly, cordially, and constantly approved of and concurred in 
the constitutional doctrines which you denounce as timid and treason- 
able. He indorsed the opinion of his predecessor with extravagant 
and undeserved laudation ; he gave his adhesion to the annual mes- 
sage in many ways ; and the special message of 8th January, 1861, 
which expressed the same principles with added emphasis, was care- 
fully read over to him before it was sent to Congress, and it re- 
ceived his unqualified assent. The existing evidence of this can be 
easily adduced ; it is direct as well as circumstantial, oral as well as 
documentary, and some of it is in the handwriting of Mr. Stanton 
himself. If you are willing to put the question into a proper form for 
judicial investigation, I will aid you in doing so, and give you an op- 
portunity to make out your case before an impartial tribunal. 

If your statement be true that Mr. Stanton disbelieved in the prin- 



POLITICAL ESSAYS AND LETTERS. 255 

ciples to which the Administration was unchangeably pledged, how did 
he come to take office under it ? AYas ho so anxious for public em- 
ployment that ho consented to give up his own convictions and assist 
in carrying out measures which his judgment condemned as the ■ ofE- 
vspring of timidity and treason ? Or, did he accept the confidence of 
the President and. the Cabinet Avith a predetermined intent to betray 
it? Either way you make him guilty of unspeakable baseness. 

But conceding that he would accept, why did the President, with 
the consent of his advisers, give the appointment to a man whom they 
knew to be hostile to them upon points so vital not only to the public 
interests but their own characters ? That at such a time they would 
invite an undisguised enemy into their counsels, is a tale as wildly im- 
probable as any ever swallowed by the credulity of the Salem witch- 
finders. Your own consciousness of this compels you to explain by 
attributing it to a special intervention of Divine Providence. Your 
impious theory is that Almighty God procured this appointment mi- 
raculously, in order that you, the enemies of the American Consti- 
tution, might have a spy in the camp of its friends. This will not 
serve your turn. Eeason never refers a human event to supernatural 
agency, unless it be impossible to account for it in any other way. 
The mystery of this case is easily cleared up by the hypothesis that 
you have misrepresented it from beginning to end ; which is no mira- 
cle at all, but quite in the natural order of things. 

The truth is, Mr. Stanton was in perfect accord with the Adminis- 
tration, before and after he became a part of it, on every question of 
fundamental principle. He had unlimited confidence in the men 
with whom he was acting, and they confided in him. For his chief 
and some of his colleagues he jirofessed an attacliment literally bound- 
less ; for all of them who stayed during the term, and for Thompson, 
who did not stay, he was warm in his friendship. You would now 
have us believe that these were merely the arts of an accomplished im- 
postor ; that while he was, in appearance, zealously co-operating with 
us, he was reporting to you that '''he saw treason in every part of the 
Government " ; and that he was secretly using all the means in his 
power to stir up the vilest passions against us. 

Some overt acts of the treachery you ascribe to him are curious ; 
for instance, the Sumner story, which you tell with singular brevity 
and coolness. Mr. Sumner called on him at his office, for what pur- 
pose you do not disclose. Mr. Stanton did not receive his visitor 
either with the politeness of a gentleman or the courtesy due to a 
Senator, much less with the cordiality of a friend ; but hustled him 
out of the building as if ashamed to be seen with him in daylight. 
He told him expressly that he did not dare to converse with him 
there, but would see him at one o'clock that night. The hour came, 
and then, when the city was wrapped in sleep, he skulked away to the 



25G POLITICAL ESSAYS AND LETTERS. 

meeting-place, where, under the cover of darkness, he whispered the 
tales which he did not dare to utter iu the hearing of the parties they 
were intended to ruin. And those parties were his friends and bene- 
factors ! Into what unfathomed gulfs of moral degradation must the 
man have fallen who would be guilty of this ! But remember, this is 
another second-hand story, and you are not a competent witness. We 
will trouble you to call Mr. Sumner, if you please. Let him testify 
what treason Stanton disclosed, and explain, if he can, how this 
midnight and secret information against men whom he was afraid to 
confront, is consistent with Mr. Stanton's character as a courageous, 
outspoken, and honest man. 

He said nothing whatever to us about the treason which he saw in 
every part of the Government. lie made no report of his discoveries 
to the President. He maintained unbroken his fraternal relations 
with his colleagues. By your own account, he admitted to Mr. Sum- 
ner that he did not dare to speah of such a thing even in his own 
ofiBce, lest it might reach the ears of his associates in the Adminis- 
tration. Among the members of Congress whom you name as tlie 
recipients of his secret communications, not one man of moderate 
views is included ; much less did he speak to any friend of the par- 
ties accused. He cautiously selected their bitterest enemies, and 
poured his venom into hearts already festering with spite. The House 
raised a committee " to investigate treasonable machinations and con- 
spiracies," upon which there were members of both parties. Stanton 
did not go before it and tell his story ; nor did he mention the subject 
to Cochrane, Eeynolds, or Branch ; but he " made an arrangement by 
which Messrs. Howard and Dawes were informed" of whatever they 
wanted to know. It appears, too, that a committee of vigilance was 
organized by the more active Eepublican members of Congress ; in 
other words, the extreme partisans of both Houses got up a secret body 
of their own, not to perform any legal duty pertaining to their offices, 
not to devise public measures for averting the ruin which threatened 
the country, but to prowl about in the dark for something to gratify 
personal malice or make a little capital for their party. You were a 
member of that committee, as it was fit you should be, and Mr. Stan- 
ton gave you "warnings and suggestions " how to proceed. This is 
what you call *' rising in that crisis above the claims of partisanship." 
At night he assisted you to rake the sewers in search of materials to 
bespatter his colleagues, and every morning he appeared before them 
to ''renew the assurances of his distinguished consideration." It was 
thus that, in your estimation, '' he consecrated himself to the lofty 
duties of an exalted patriotism." 

What cargoes of defamatory falsehood he must have consigned to 
your keeping ! You do not break the foul bulk, but you have given 
us some samples which deserve examination. He denounced Mr. 



POLITICAL ESSAYS AND LETTERS. 257 

Toucey as false to his country, inspired Dawes's resolution against 
him, and expressed the belief that he ought to be arrested. Let ns 
look at this a moment. 

To Mr. Toucey's face Mr. Stanton breathed no syllable of censure 
upon his official conduct as head of the Navy Department. To the 
President or Cabinet he expressed no doubt of his wisdom, much less 
of his honesty. lie met him every day with a face of smiling friend- 
ship. Toucey certainly had not the remotest idea that Stanton was 
defaming him behind his back, or conspiring with abolitionists to de- 
stroy his reputation. Can it be i)ossible that Stanton was the author 
of tlie Dawes resolution ? 

That resolution is found in the ''Congressional Globe," second 
session, Thirty-sixth Congress, 1860-61, part second, pp. 1423, 1424. 
The proceeding was begun, no doubt, in the hope of finding something 
on which the charge could be founded of scattering the navy to pre- 
vent it being used against the South. But that failed miserably ; and 
the committee reported nothing worse than ''a grave error" of the 
Secretary in accepting without delay or inquiry the resignation of cer- 
tain naval officers. Even this had no foundation in law or fact. Its 
truth was denied and the evidence called for ; none was produced. 
The right to exj^lain and defend was demanded, but the gag of the 
previous question was applied before a word could be said. The ac- 
cusers knew very well that it would not bear the slightest investiga- 
tion. Mr. Sickles said truly (amid cries of " Order I ") that censure 
without evidence disgraces only those who pronounce it. Mr. Tou- 
cey's reputation was never injuriously affected by it in the estimation 
of any fair-minded man. But you fish it up from the oblivion to 
which it has been consigned, and try to give it decency and dignity by 
saying that Stanton insj)ired it. You do not appear to perceive the 
hideous depth to which your assertion, if true, would drag him down. 
It is not true ; the whole business bears the impress of a different 
mind. 

Mr. Stanton also suggested that his colleague and friend Toucey 
ought to be arrested. This could not have been a proposition to take 
him into legal custody on a criminal charge regularly made. That 
would have been utterly impossible and absurd. The Dawes commit- 
tee itself could find nothing against him but an error of judgment. 
The suggestion must have been to kidnap him, without an accusation 
or proof of probable cause, and consign him to some dungeon with- 
out trial or hope of other relief. If Stanton attempted to get this 
done, he was guilty of such perfidy as would have shocked the bas- 
est pander in the court of Louis XV. But to confute your libel 
upon Toucey and Stanton both, it is only necessary to recollect the 
fact that kidnapping of American citizens was at that time wholly 
unknown and absolutely impossible. We were living under a Demo- 



258 POLITICAL ESSAYS AND LETTERS. 

cratic Administration, the country was free, and law was supreme. 
Tyranny had not yet sunk its bloody fangs into the vitals of the na- 
tional liberty. The systematic perjury which afterward made the 
Constitution a dead letter was not then established as a rule of po- 
litical morality. 

Your Avhole account of the "Cabinet scene" at which Floyd, 
"raging and storming, arraigned the President and Cabinet,'' and 
" the President trembled and grew j)ale," and "Stanton met the baf- 
fled traitor and his fellow-conspirators with a storm of fierce and fiery 
denunciation," is a pure and perfectly baseless fabrication. It is ab- 
surd to boot. "What was Floyd's arraignment of the President and 
the Cabinet for ? You say for violating their pledges to the seces- 
sionists ; and the charge against the President and the Cabinet of 
violating their pledges was predicated solely on the fact that Colonel 
Anderson had removed from Fort Moultrie to Fort Sumter; and 
Floyd zvas disappointed in Colonel Anderson, whom he "had ex- 
pected," as a Southern man, to " carry out his purposes in the in- 
terest of treason." This is mere driveling at best, and it is comj^letely 
exploded by the record, which shows that Colonel Anderson's trans- 
fer of his force from Fort Moultrie to Fort Sumter was in literal obedi- 
ence to orders from the President, which Floyd himself had trans- 
mitted. Moreover, Floyd at that time was not in a condition to 
arraign anybody. He himself had just before that been not only ar- 
raigned but condemned, and the President had notified him that he 
would be removed if he did not resign. Was it this broken-down 
and powerless man who made the President tremble and grow pale 
by complaining that a subordinate had unexpectedly obeyed liis oAvn 
orders ? You are not silly enough to say so. Was it Stanton's 
"storm of fierce and fiery denunciation"? Stanton was no stormer 
in the presence of such men as he then had to deal with. His lan- 
guage was habitually deferential, his whole bearing decent, and his 
behavior at the council-board was entirely free from the insolence you 
impute to it. Your tales do not hang together. No one can give 
credence to your report of bold and stormy denunciation by Stanton 
in the presence of his chief and his colleagues, and at the same time 
believe what you say of him at another place, where you describe him 
as a dastard, skulking about in the dead of night to find a place of con- 
cealment remote enough to make him safe, and confessing that he did 
not dare to breathe his accusation in the face of day. The crawling 
sycophant — the stealthy spy — who bargained so carefully for darkness 
and secrecy when he made his reports, must have been wholly unfitted 
to play the part of Jupiter Tonans in a square and open conflict. It 
is not possible that the fearless Stanton of your " Cabinet scene " 
could be the same Stanton who, at one o'clock in the night, was 
" squat like a toad " at the ear of Sumner — 



POLITICAL ESSAYS AND LETTERS. 259 

"Essaying by his devilisli arts to reach 
The organs of his fancy." 

I take it upon me to deny most emphatically that Mr. Stanton 
ever ''wrote a full and detailed account of that Cabinet scene " by 
which you can have the least hope of being corroborated. I can not 
prove a negative ; but I can show that your assertion is incredible. 
That he should have coolly indited a letter, even though he never 
sent it, filled with foolisli brags of his own prowess, which half a 
dozen men then living could prove to be false, was not consistent 
either with his prudence,'veracity, or taste. Besides, he often spoke 
with me about the events of that period, and never in my hearino- 
did he manifest the slightest disposition to misunderstand or misrep° 
resent them. On the contrary, when a statement resembling yours 
about a Cabinet scene was published in a London paper, I suggested 
that he ought to contradict it ; and he replied, explaining how and by 
whom it had been fabricated, but said it was not worth a contradic- 
tion, for every man of common intelligence would know it to be a 
mere tissue of lies. You can not destroy Stanton's character for 
sense and decency by citing his own authority against himself. Nor 
can you find any other proof to sustain the story. It is the weak in- 
vention of some scurvy politician, who sought to win the patronage 
of one administration by maligning another : 

" Some busy and insinuating rogue, 
Some cogging, cozening slave, to get some office, 
Hath devised this slander." 

Your account of his raid upon the Treasury, in company with 
Governor Morton, would look very strange in a panegyric made by 
anybody else but you. I will restate the facts you have given, but with- 
out the drapery by which you conceal from yourself the view of them 
which must unavoidably be taken by all men who believe in the obli- 
gation of any law, human or divine. In the winter of 1863, the Legis- 
lature of Indiana was dissolved before the appropriations had been 
made to carry on the State government or aid in putting troops in 
the field. Of course. Congress did not and could not make appropri- 
ations for carrying on the State government, or putting troops in the 
field, which the State was bound to raise at her own expense. But 
the Governor determined to get what money he wanted without au- 
thority of law, and he looked to Washington for assistance. Presi- 
dent Lincoln declined to aid him, because no money could be taken 
from the Treasury without appropriation. Mr. Stanton, being applied 
to, saw the critical condition of the Governor, and, without scruple, 
3omed him m his financial enterprise. He drew a warrant for a quar- 
ter of a million dollars, and gave it to the Governor to spend as he 
pleased, not only without being authorized by any appropriation for 



260 POLITICAL ESSAYS AND LETTERS. 

that iJiirpose, but in defiance of express law appropriating the same 
money to another and a totally different object. If this be true, the 
guilt of the parties can hardly be overcharged by any words which the 
English language will supply. It was getting money out of the pub- 
lic Treasury, not only unlawfully, but by a process as dishonest as lar- 
ceny. It involved the making of a fraudulent warrant, of which the 
moral turpitude was no less than that committed by a private individ- 
ual when he fabricates and utters a false paper. It was a gross and 
palpable violation of the oaths which the Governor and Secretary had 
both taken. It was, by the statute of 1846, a felonious embezzlement 
of the money thus obtained, punishable by a fine and ten years' im- 
prisonment in the penitentiary. The parties, according to your ver- 
sion, were both conscious of the high crime they Avere perpetrating, 
for you make one say to the other, " If the cause fails, you and I will 
be covered with prosecutions, and probably imprisoned or driven from 
the country." You do not diminish or mitigate the offense one whit 
by saying that the money was afterward accounted for. A felony can 
not be compounded or condoned by a simple restitution of the spoils ; 
and the law I have cited was made expressly to prevent officers 
charged with the safe-keej)i ng, transfer, or disbursement of public 
money from using it to accommodate friends in a "critical condition." 
But what will be said of your trustworthiness as a contributor to his- 
tory when the public comes to learn that this whole story is bogus ? 
I pronounce it untrue in the aggregate and in the detail — in the sum 
total and in every item. The truth is this : In 1863 the Democratic 
majority of the Indiana Legislature were ready and willing to pass 
their proper and usual appropriation bills, but were jirevented by the 
Republican minority, who '"bolted" and left the House without a 
quorum until the constitutional limit of their session expired. The 
Governor refused to reconvene them, and thus, by his own fault and 
that of his friends, he was without the ways and means to pay the cur- 
rent expenses of the State. He was wrong, but his error was that of 
a violent partisan, not the crime of a corrupt magistrate. He did not 
come to "Washington with any intention to relieve his necessities by 
plundering the Federal Treasury. He made no proposition either to 
Mr. Lincoln or Mr. Stanton, that they or either of them should be- 
come his accomplices in any such infamous crime. His purpose was to 
demand payment of a debt due, and acknowledged to be due, from the 
United States to the State of Indiana. The money liad been ajipropri- 
ated by Congress to pay it, and it loas paid according to laio ! I know 
not how Mr. Morton may like to see himself held up as a felon con- 
fessing his guilt, but I can say with some confidence that, if Mr. 
Stanton were alive, he would call you to a very severe reckoning. 

"What must amaze the readers of your article more than anything 
else is the perfect sincerity of the belief which you express, directly or 



POLITICAL ESSAYS AND LETTERS. 261 

indirectly, in every Hue of it, that the base misconduct you attribute 
to Mr. Stanton is eminently praiseworthy. You seem to be wholly 
unconscious of defaming the man you meant to eulogize. But, if 
your facts be accepted, the honor and honesty of them will not be 
measured by your standards. It may be true that public opinion has 
of late been sadly debauched ; but the American people have not per- 
manently changed their code of morality. Good faith between man 
and man, personal integrity, social fidelity, observance of oaths, and 
obedience to the laws which hold society together, have heretofore been 
numbered among the virtues, and they will be again. The govern- 
ment of God has not been reconstructed. Fraud or force may abolish 
the Constitution, but the Ten Commandments and the Golden Rule 
are beyond your reach ; some persons have faith enough to believe 
that even " the gates of hell shall not prevail against them." 

The odious character you have given Mr. Stanton is not merely 
unjust in itself, but, if uncontradicted, it must lead to other miscon- 
ceptions of him. Besides the offenses against law, justice, humanity, 
and truth which you liavc enumerated and assigned to him for his 
glorification, he has been charged with others which, if established, 
must expose him to universal execration. For instance, it is asserted 
that, in the winter of 18G1, when he was a member of the Cabinet, he 
gave to Governor Brown, of Mississippi, tlic most cmi)hatic assurance 
of his conviction that secession was right, and urged him to "go on" 
with it ; that in 18G3, while he was writing the most affectionate let- 
ters to General McClellan, he not only maligned him at Washington, 
but maliciously plotted his defeat and the destruction of his army be- 
fore Eichmond ; that he refused in 1864 to receive the Andersonville 
prisoners when offered freely without ransom, exchange, or other 
equivalent, though he knew if left there they must perish miserably 
for want of the medicine and food which their captors had not the 
means to give them. These accusations, you are aware, have often 
been made with horrible aggravation which I need not repeat. His 
friends have denied and discredited them, mainly on the ground that 
his character was wholly above such imputations. But you have done 
your full best to make this defense worthless. If he wore the cloak of 
constitutional Democracy with us, and put on the livery of abolition- 
ism with you, why should he not assume the garb of a secessionist 
with men of the South ? If he tried to get his friend Toucey kid- 
napped, what moral principle could hinder him from contriving the 
ruin of his friend McClellan ? If he craftily exerted himself at your 
end of the avenue to bring on a bloody civil war, which according to 
his own declarations at our end was unlawful and causeless, what crime 
against human life was he not capable of committing ? If he will- 
fully left our prisoners to certain starvation, and then managed falsely 
to throw the odium of tlieir deatli upon the political enemies of the 



263 POLITICAL ESSAYS AND LETTERS. 

party in power, and thus contributed very largely to the enslavement 
of the Southern States, was not that an act of " intense and abound- 
ing patriotism," as 'well worthy of your praise as some others for 
which you have bestowed it ? Those who give credit to you will find 
it perfectly logical to believe the worst that has ever been said of him. 

Sejanus has passed for about the worst specimen of ministerial 
depravity whom we have any account of ; but nothing is recorded of 
him which might not be believed of Stanton, if you are regarded as 
credible authority ; for you have made it a labor of love to paint him 
as a master in the loathsome arts of treachery, dissimulation, and false- 
hood — unfaithful alike to private friendship and to public duty. 
With the talents he possessed and the principles you ascribe to him, 
he might have made an invaluable grand vizier to a Turkish Sultan 
— provided the Sultan were in the prime of life and had no powerful 
brother near the throne ; but in a free country such a character can 
not be thought of without disgust and abhorrence. 

In your eyes the " intense and abounding patriotism " of Stanton 
is sufficient to atone not only for all the faults he had, but for all the 
offenses against law and morals which the utmost fertility of your 
imagination can lay to his charge ; and patriotism in your vocabulary 
means devotion to the interests of that political sect which has you 
for one of its priests. This will not suffice. You can not safely 
blacken a man with one hand and neutralize the effect by daubing on 
the whitewash of patriotism with the other. Patriotism, in its true 
sense, does indeed dignify and adorn human nature. It is an exalted 
and comprehensive species of charity, which hides a multitude of sins. 
The patriotism of Washington, which laid broad and deep tlie founda- 
tion of free institutions and set the noble example of implicit obedi- 
ence to the laws ; the patriotism of John Hampden, who voluntarily 
devoted his fortune and his life to the maintenance of legal Justice ; 
the patriotism of Cato, who resisted the destructive madness of his 
countrymen and greatly fell with a falling state ; the patriotism of 
l^aniel O'Connell, w^ho spent his time and talents in constant efforts to 
relieve his people from the galling yoke of clerical oppression ; the pa- 
triotism of the elder Pitt, who, speaking in the cause of universal lib- 
erty, loudly rejoiced that America had resisted the exactions of a 
tyrannical Parliament— to such patriotism some errors may be par- 
doned. When men like these are found to have committed a fault, it 
is well that history should deal with it tenderly — 

" And, sad as angels for the good man's sin, 
"Weep to record and blush to give it in." 

But the loyalty that tramples on law— the fidelity which stabs the 
liberties it ought to protect— the public zeal which expends itself in 
gratifying the vindictive or mercenary passions of one party by the 



POLITICAL ESSAYS AND LETTERS. 263 

unjust oppression of another — this kind of patriotism has less claim 
to the admiration of the world. It is a cheap thing, readily supplied 
to any faction unprincipled enough to pay for it. It is entirely too 
''intense and abounding," and its intensity and abundance are always 
greatest in the worst times. It does not sanctify evil deeds. If it be 
not a sin in itself, it certainly deserves to be ranked among what Dr. 
Johnson calls '"the rascally virtues." 

Mr. Stanton's reputation is just now in a critical condition. He 
took no care of it while he lived, and he died, like Bacon, leaving a 
vulnerable name ''to men's charitable speeches," He needs a more 
discriminating eulogist than you, and a far better defense than I am 
able to make. I have not attempted to portray his good qualities ; I 
intended only to protest against your shameless parade of vices to 
which he was not addicted, and crimes which he never committed ; and 
this I have done, not only because it is just to him, but necessary for 
the vindication of others. 

II. 

To the Hon. Henry Wilson, Senator from Massachusetts : 

CoxTEARY to my first intention, and not without reluctance, I 
lay aside other business of far greater importance while I take a brief 
review of your supplemental eulogy on Stanton. The occurrences 
which caused this change of mind might require explanation, but 
they are too entirely personal to occupy any space in these pages. 
"Without more preface I give you my thought on your latest essay. 

You take violent exceptions to my former letter as being vitupera- 
tive and ill-tempered. Let us see how the account stands between us 
on the score of mere manners, and then determine whether you have 
a right to set yourself up as an arbiter elegantiarum. 

You wrote, or caused to be written, and published in a magazine 
of large circulation, an article in which you attacked the reputation 
of certain persons in a style so scandalous that vituperation is no name 
for it. Without reserve or qualification you pronounced them guilty 
of the worst crimes known among men. The specific acts of which 
you accused them, and the opprobrious epithets you applied to them, 
were as insulting as you could make them. Most of the gentlemen 
thus assailed were dead ; but that made no difference to you — ^your 
invective was not cliecked by any regard for the feelings of friends or 
relatives. The indecency of this was greatly aggravated by the fact that 
you put it in the form of a funeral panegyric upon a man whose recent 
and sudden death should have sobered your party rage and solemnized 
your heart, or at least operated as a temporary sedative upon your ap- 
petite for defamation. What was I to do ? My first impulse was — 
no matter what ; I did not obey it. But I concluded that all the pur- 
poses of a fair vindication might be accomplished by a simple contra- 
diction of your statements, coupled with the plain reasons which would 



264 POLITICAL ESSA YS AND LETTERS. 

show them to be unworthy of belief. I did this, and I did no more. 
I did it in terms so free from unnecessary harshness that I am amazed 
this moment at my own moderation. But you affirm my denial to be 
an act of " reckless audacity " ; in your eyes my (Zefense is an o/fense. 
I really can not understand this, unless you suppose that your politi- 
cal opponents have no rights, even of refutation, which you are bound 
to respect, and that slander, like other injuries, is consecrated by loy- 
alty when a Democrat is the sufferer. 

You make no attempt to impugn the soundness or truth of the law 
as I gave it to the President on the 20tli of November, 18G0. That 
opinion was very simple as it stood upon the record ; and in my for- 
mer letter I gave you the elementary principles, clarified by the most 
familiar illustrations, and brought the whole subject down to the level 
of the lowest understanding. Besides, you had the aid of about a 
dozen Senators and members of Congress in getting up your reply. 
With all these helps you certainly might have specified some error in 
the opinion, if it be erroneous. But you content yourself with merely 
railing at it. I think I may say, with more confidence than ever, that 
**you can not be so ignorant of the fundamental law as not to know 
that our exposition of it was perfectly sound and correct." 

While you do not deny its truth, you think you annihilate it by 
the assertion that it is extensively disapproved. Do you really believe 
that an officer, dealing with questions of law, is bound to be popular 
rather than right ? Will you never learn that '•' statesmen " and '• pa- 
triots " of your school have notions about all the political virtues 
which a sound morality holds in utter detestation ? To flatter the 
passions and cajole the understanding of the people is not the highest 
object of any honest man's ambition. Mr. Jefferson thought he ought 
to " do them as much good as possible in si)ite of their teeth." But on 
your theory, to be ^'ever strong upon the stronger side" is not only 
good fortune, but high desert ; while it is mere imbecility to offend 
the powerful by letting the countenance of the law shine upon the 
weak or the oppressed, who can not reward you with office or money. 
If your theological opinions conform to your ideas of political duty, 
you esteem the luck of Barabbas as more meritorious than the fidelity 
of John, or the devotion of all the Marys. 

No doubt there was then, as there is now, a set of ''small but 
ferocious politicians," who became completely infuriated against me 
because I did not falsify the law, advise the President to violate the 
Constitution, and thus bring on an immediate dissolution of the 
Union. But you can hardly expect me to regret that I did not escape 
their censure. They were men who had been taught that enmity to 
the Constitution was the sum of all public and private virtue. There 
certainly is not an uncorrupted man in the country who will say that 
I was to blame for giving the law faithfully and truly. 



POLITICAL ESSAYS AND LETTERS. 2G5 

You declare that " contemporaneous history has already pro- 
nounced " against me, and you quote a few words of twaddle, appar- 
ently from tiie writings of some one whose name you are ashamed to 
mention. You call this a judgment upon me which posterity is not 
likely to reverse. Political power dishonestly wielded always has 
hacks to defend its excesses by maligning its opponents. A dozen 
books of that character have been printed within the last seven years. 
These productions come within the awkward description you have 
given of your own ; they are *' not history or biography, nor intended 
to be " ; they are places of deposit for worn-out calumnies — mere sew- 
ers into which the filth of the j)arty is drained off. I hope I am tol- 
erably secure from the praises of this venal tribe ; and their abuse is 
'prima facie evidence of a character at least negatively good. It is 
not worth while for you or me to trouble ourselves about posterity, 
for posterity will not probably take much account of us. No doubt 
you did all in your power to subvert the free institutions of our Eevo- 
lutionary fathers, and to debauch the political morals of the country ; 
but the utmost exertion of your abilities has not sufficed to raise you 
above the common file of partisans who have engaged in the same evil 
work. On the other hand, the cause of liberty regulated by law has 
had a crowd of advocates so infinitely superior to me that my feeble 
efforts can not be expected to attract the notice of future generations. 

You make no attempt to justify your abuse of Mr. Buchanan ; 
you do not repeat your charge against Mr. Toucey of scattering the 
ships of the navy to render that arm powerless ; nor do you now jire- 
tend to assert that Mr. Thompson was guilty of robbing the Indian 
trust funds. But you offer no reparation, nor even make an excuse, 
for the wanton and unprovoked injury which you tried to commit 
upon the character of the living and the memory of the dead. You 
sullenly permit judgment to be rendered against you by nil elicit. I 
mention this only to say that it very seriously affects your credibility 
upon the other points. Falsus in uno, falsus in omnibus. 

You pervert my words and my meaning when you say that I repre- 
sented Mr. Tliompson as being above the range of ordinary mortals. 
I merely declared that his mental ability, good sense, and common 
honesty placed him very far beyond you, who had assailed him with a 
false charge of felonious robbery. You do not see the justice of this 
comparison, and you think if I had not been a mere lawyer, having 
"little acquaintance or association with statesmen," I might have en- 
tertained a different notion. Although I consider my calling to be as 
reputable as any that you ever followed either before or after you took 
up the trade of a politician, you may make what deduction you please 
on that account from the value of my judgment ; but you must not 
interfere with my undoubted right to believe (as I do most devoutly) 
that it would take a great many Wilsons to make one Thompson. 



h-^ 



266 POLITICAL ESSAYS AND LETTERS. 

It was not to be expected that Governor Floyd would escape your 
maledictioDs. No public man ever provoked such a storm of popular 
wrath as he did. The President, who had trusted him, withdrew his 
confidence, drove him from his counsels, and ordered him to be in- 
dicted for malversation in office. His colleagues left him to his fate, 
and there was nobody in all this land to take his part. He had some 
qualities which commanded the respect of folks like you as long as he 
lived and moved among you. But absent, unfriended, defenseless, 
dead — fallen in a lost cause and buried in an obscure gi'ave — he was 
the very man of all others, in or out of the world, whom your magna- 
nimity would prompt you to attack. But why did you not charge 
him with misconduct in the financial management of his department ? 
That might have provoked a comparison between him and others, 
whom you wished to court, to flatter, and whitewash. Therefore, 
you preferred to take up the exploded charge of sending guns and 
munitions to the South for the use of the secessionists in the war. 
Your first paper had nothing in it on this subject excejit the bald 
assertion, and I was content with a naked denial. But in your last 
you come back with a more extended averment, and j^roduce what 
you seem to suppose will be taken as evidence by at least some of 
your readers. Let us look at it. 

A committee was appointed by the House of Representatives in 
January, 1861, to ascertain how the public arras distributed during 
the year 1860 had been disposed of. Mr. Floyd was not present at 
the investigation ; he had not a friend on the committee ; it was *' or- 
ganized to convict" him if it could. It rejiorted the evidence, but 
gave no judgment criminating him with the offense you accuse him 
of. On the contrary, the opinion was exjiressed by the chairman that 
the charges were founded in '*' rumor, speculation, and misapprehen- 
sion." But you take up the reported evidence and try to make out a 
case which the committee did not make out, by carefully suppressing 
all the principal facts and misstating the others. 

Your charge of fraudulently sending arms to the South can not be 
true of the heavy arms made at Pittsburg for the forts in Louisiana 
and Texas, because they were not sent at all. Floyd gave an order to 
ship them on the 20th of December, 1860, but it was revoked by the 
President before a gun was started. It is, of course, possible that 
Floyd, in making the order, acted in bad faith ; but there is no proof 
of that. On the contrary, Colonel Maynadier, an honest as well as a 
sharp man, and a most vigilant officer, who knew all the facts of the 
case and ifnderstood Floyd's attitude with regard to secession and 
union as well as anybody in the whole country, cheerfully set about 
the business of carrying out the order, though it was not in writing, 
and testified that he had no suspicion of any improper object or mo- 
tive in it. In fact and in truth, Floyd was not, in sentiment or in 



POLITICAL ESSAYS AND LETTERS. 2G7 

action, a secessionist until after he saw that the breach between him- 
self and the President, which originated in other matters, was irrepa- 
rable. Up to the time when he got notice that he must resign, he was 
steadily opposed to the Southern movement, and the bitterest enemies 
he had Avere the leading men of that section. Colonel Mayuadier says 
that *' he was regarded throughout the country as a strong advocate 
of the Union and opponent of secession " ; and he adds, as a confirma- 
tion of this, that "he had recently published over his own signature 
in a Richmond paper a letter on this subject which gained him high 
credit in the North for his boldness in rebuking the pernicious views 
of many in his own State." After he found the whole Administration 
against him, he was driven by stress of necessity into the ranks of the 
party which he had previously opposed. 

The great and important fact to which the resolution of the House 
directed and confined the attention of the committee, and which is 
made perfectly clear by the evidence, you do not refer to at all, but 
keep it carefully out of sight from beginning to end of your statement. 
The question was and is. Whether the Secretary of War under the 
Buchanan Administration did at any time subsequent to the 1st of 
January, 18G0, treacherously dispose of guns and munitions for the 
purpose of giving to the South tlie advantage m the war which the 
leaders in that section intended to make against the Federal Govern* 
ment ? This was the "rumor, speculation, and misapprehension" to 
which the chairman of the committee alluded ; this is substantially 
what the partisan newspapers and stump-orators have asserted and re- 
asserted over and over again, until thousands of persons in every part 
of the country have been made to believe it ; this is what you meant 
by your first article, and what you persist in and reaffirm by your last 
Now examine the facts. There was a law almost coeval with the gov- 
ernment for the distribution of arms among the different States, ac- 
cording to their representation in Congress, for the use of their militia. 
Under this law the Ordnance Bureau, without any special order from 
the head of the department, gave to each State that applied for it her 
proper quota of muskets and rifles of the best pattern and make pro- 
vided for the regular army. During the year 18G0 the number of 
muskets so distributed was exactly 8,423, of which the Southern States 
received 2,091, while the Northern States got nearly three times that 
number, to wit, 6,332. Some long-range rifles of the army caliber 
were distributed. The aggregate number amounted to 1,728, and they 
all went to Northern States except 758, about half enough for one 
regiment, which were divided between Virginia, Kentucky, Tennessee, 
North Carolina, Mississippi, and Louisiana, the other States of the 
South receiving none. Why did you conceal these facts ? You knew 
them, and you could not help but see their strict relevancy and great 
importance. Perhaps you did not know that the suppressio vcri is as 
18 



268 POLITICAL ESSAYS AND LETTERS. 

bad us the suggestio falsi, and thought it fair to make out a criminal 
charge against a dead rebel by keeping back so much of the truth as 
did not suit your purpose. 

The fact that the Southern States neglected to take their proper 
and just quota, which they might have got for the asking, satisfied the 
committee, and no doubt fully convinced you, that there could have 
been no fraudulent combination in 18G0 between them and the War 
Department to rob the Government of its arms for their benefit. That 
concluded the whole case, since it was impossible for a sane man to 
believe that such a plot could have been formed and acted upon at a 
previous time, and yet had no existence in the year immediately pre- 
ceding the Avar. Nevertheless, the committee went back, and it was 
proved tliat in 1859, before any war was apprehended — before the elec- 
tion of Lincoln was dreamed of — before tlie division of the Democracy, 
which made his election possible with a million majority against him 
— Floyd ordered a transfer of 115,000 muskets from Northern to 
Southern arsenals. This you parade with a great flourish as evidence 
of a most wicked robbery. But here we find you again at the disin- 
genuous business (is not that a soft phrase ?) of keeping back a truth 
which would have spoiled the face of your story. These arms were 
all ivorthless and unserviceable. We had 500,000 of them ; they cum- 
bered the Northern arsenals, and could not be used ; a law had been 
passed to authorize the sale of them ; they were offered for years at 
two dollars and fifty cents apiece, about one tenth the price of a good 
gun, and they could not be got off. Twice a considerable number 
were sold, but the purchasers ujjon further examination refused to 
take them. Of these 500,000 condemned muskets, the Secretary of 
War, in 1859, ordered 115,000 to be sent to the South, doubtless for 
mere convenience of storage. To "weapon the rebellion" with arms 
like these would have insured its destruction the instant its forces 
came into the presence of troops having the improved modern gun 
in their hands. Floyd could not have done a greater injury to the 
Southern cause than this would have been. Nor is it possible to be- 
lieve that Southern leaders would have conspired with him to purloin 
these useless arms in 1859, and then, in 1860, decline to take the share 
that legally belonged to them of the best muskets and rifles ever in- 
vented. All these facts appear in the evidence reported by the com- 
mittee, from which you pretend to be making fair and candid citations, 
and you say not a word about them. 

If you were "a mere lawyer," or any lawyer at all, and would go 
before a judicial tribunal mutilating the truth after this fashion, you 
would immediately be expelled from the profession, and no judge 
would ever permit you to open your mouth in a court of justice 
again. If you would appear as a witness, and in that character tes- 
tify to the contents of a written document in the way you have set 



POLITICAL ESSAYS AND LETTERS. 269 

out this report to your readers, it might be followed by very disa- 
greeable consequences, which I will not shock your polite ears by men- 
tioning. 

Mr. Cobb, while Secretary of the Treasury, performed his duties 
with singular purity, uprightness, and ability. No enemy has ever 
ventured to point out a single public act done in that department by 
him of which the wisdom, the lawfulness, or the honesty could be even 
doubted. The disjointed and loose accusation of your first paper im- 
plied that by some official delinquency he had purposely disorganized 
the fiscal machinery of the Government, or otherwise perpetrated some 
malicious mischief on the public credit. Now, however, you are re- 
duced to the old and never-failing resort of ** treasonable utterances " ; 
something that he said in private conversation had the effect of injur- 
ing the credit of the United States. What was it ? It is well known 
that the prices of all securities, public and private, began to go down 
immediately upon the presidential election of 18G0, and continued 
going down for years afterward. Is this attributable to the treasonable 
utterances of Thomas, and Dix, and Chase ? But what is the use of 
pursuing such a subject ? Mr. Cobb was dead, and you felt a sort of 
necessity for doing some despite upon his grave. This feeble absurd- 
ity was all you could do. 

I considered myself bound to defend Mr. Stanton against the praise 
Avliich described his character as infamous. Down to the time of his 
apostasy we were close and intimate friends, and I thought I knew 
him as well as one man could be known to another. I do not claim 
that he owed me anything ; for I made no sacrifices of myself or any- 
body else to serve him. I advanced him in his profession, and thereby 
improved his fortune, but he got nothing in that way for which he 
did not render equivalent services. I strove long, and at last success- 
fully, to remove the prejudices of Mr. Buchanan and others against 
him, because I thought them unjust, and because it was inconvenient 
for me that the President should not trust a man in whom I had un- 
limited confidence. I recommended him pressingly for Postmaster- 
General upon the death of Mr. Brown, solely for the reason that the 
exigencies of the joublic service in that department required a man of 
his great ability and industry. I caused him to be appointed Attorney- 
General, because I knew (or thought I knew) that he and I were in 
perfect accord on all questions, whether of law or policy, which he 
might have to deal with, and because I was sure that he would handle 
them not only with fidelity but with consummate skill. But, though 
he was not in my debt, the apparent warmth of his nature impelled him 
to express his gratitude in most exaggerated language. After he took 
office under the Lincoln Administration our paths diverged so widely 
that I did not often see him. When I did, he sometimes overwhelmed 
me, as before, with hyperbolical demonstrations of thankfulness and 



270 POLITICAL ESSAYS AND LETTERS. 

friendship. If his feelings ever changed, he " died and made no sign " 
that was visible to me. 

Here let me record my solemn declaration that I never saw any- 
thing dishonorable in his conduct while I was associated with him. 
He never disappointed me while he was employed under me, or while 
We were colleagues in office ; and he never failed me in anything which 
I had a right to expect at his hands. His enemies spoke evil of him, 
but that is "the rough brake that virtue must go through," and I 
allowed no tale-bearer to shake my faith. My own personal knowledge 
does not enable me to accuse him of any mean or disgraceful act. How 
far you have succeeded, or may hereafter be able to succeed, in prov- 
ing him a treacherous hypocrite, is a question to be considered. But 
I am not one of your witnesses ; my testimony, as far as it goes, is di- 
rectly against you. 

Under these circumstances it was impossible for me to be quite 
silent when I saw your publication in the "Atlantic," or to confine 
myself to a mere vindication of the other parties assaulted. It was 
plain to me that you had "wholly misunderstood the character of 
Mr. Stanton, and grossly injured him by what you suj^posed to be a 
panegyric." Your description of him, if accepted as true, would com- 
pel the belief that his whole political life was one long imposture ; 
that, as a trusted member of the Buchanan Administration, he acted 
alternately the incompatible parts of a spy and a bully ; that, while he 
was the chief law-officer of the Government, he was engaged in the 
foulest conspiracy that ever was hatched against the life, liberty, and 
honor of a colleague for whom he was at that very time professing un- 
bounded friendship ; and that, as Secretary of War, he did loyally 
and feloniously embezzle public money to the amount of two hundred 
and fifty thousand dollars at one time. It is true that you were 
actuated by no malicious intent. You meant to do him honor. Ac- 
cording to your moral apprehensions, all the evil you ascribe to him 
was good. When you wove for him this disgusting " wreath of ul- 
cers gone to seed," you thought you were decorating his coffin with a 
chaplet of the choicest flowers. You painted a monster of depravity, 
and you expected the American people to worship it with all the fer- 
vor of savages when they fall down to adore the image of some hide- 
ous demon. No doubt the votive offering of your affection took this 
anomalous form because you believed that duplicity and crime em- 
ployed against Democrats would give him the highest claim he could 
have on the admiration of the abolitionists, and because it did greatly 
increase your own esteem and regard for him. But my interest in 
his reputation required that he should be properly appreciated by 
that honest portion of the people who still adhere to the moral creed 
of their fathers. 

I do not assert that your last paper proves nothing. I will give 



POLITICAL ESSAYS AND LETTERS. 271 

you the full benefit of every fact which you have established. So far 
as you have shown Mr. Stanton to be guilty of the baseness you im- 
pute to him, I will make no contest about it. But I will not yield 
one inch to any allegation of yours unsupported by evidence. I will 
try to save out of your hands as much of his character as you have not 
already destroyed by credible evidence. My effort was to take him 
down from the pillory to which you have nailed him by the ears as ''a 
fixed figure for Scorn to point its finger at." You have done your 
strongest to oppose my rescue of him, and any partial success which 
may have rewarded your struggle must be a great comfort, of which I 
can not justly deprive you. We will examine your evidence, and see 
upon what points you have made out your case, and wherein you have 
come short of your aim. 

I. You asserted that Mr. Stanton had been from his earliest youth 
an abolitionist in his secret heart ; that to leading men of that party 
he declared himself in entire agreement with them, and hoped for the 
time to come when he could aid them. In other words, he gave in his 
perfect adhesion to them, concurred in their views of public morality, 
and was willing to promote their designs against the Federal and State 
governments whenever he could make himself most efficient to that 
end. At the same time he was in the Democratic party by virtue of 
his declared faith in exactly the opposite sentiments. To us he made 
himself appear a Democrat of the most ultra class. I do not say that 
he was an active propagandist ; but all Democrats with whom he spoke 
were impressed by the seeming strength of his attachment to those 
great principles, by the api^lication of which they hoped to save the 
Union from dissolution, the country from civil war, and the liberties 
of the people from the destruction with which your ascendency threat- 
ened them. We took him on his word, believed him thoroughly, and 
gave him honor, office, and high trusts. Now, a man may be an 
honest Democrat or a sincere abolitionist, but he can not honestly 
and sincerely be both at the same time. Between those two parties 
the hostility was deadly. Each recognized the other as a mortal foe. 
They were as far asunder as the poles on every point of principle and 
policy. They differed not merely about rules for the interpretation 
of the organic law, but opposed each other on the broad question 
whether that law was entitled to any obedience at all. One of them 
respected and reverenced the Constitution as the best government the 
world ever saw, while the other denounced it as an agreement with 
death and a covenant with hell, which it was meritorious even for its 
sworn officers to violate. If we loved any portion of it more than an- 
other, it was that part which guarded the individual rights of the people 
by habeas corpus, jury trial, and other great judicial institutions, which 
our ancestors on both sides of the Atlantic had shed so much of their 
blood to establish ; and it was precisely those provisions which had 



272 POLITICAL ESSAYS AND LETTERS. 

your bitterest enmity, and which you made the first use of your power 
to abolish, trample down, and destroy. Mr. Stanton could not have 
been truly on more than one side of such a controversy ; he could not 
serve God and Mammon both ; he could not be for the Constitution 
and against it too ; he could not at once believe and disbelieve in 
the sanctity of an oath to support it. He professed most fervently 
to be heart and soul with us. If he also professed to be with you, 
he was a wretched hyj)ocrite. If he kept up this fraudulent deceit 
for thirty years, and thereby got the highest places in the gift of 
both parties, he was " the most marvelous impostor that ever lived or 
died." 

When your first article appeared, I did not believe that you had 
any ground for this shocking imj)utation upon his character. I was 
compelled to disbelieve and contradict it, for reasons which were then 
given and need not now be repeated. But I said the testimony of the 
Chief -Justice would silence my denial. The Chief-Justice has spoken 
out and sustained your assertion. You do prove by him a declaration 
from the lips of Mr. Stanton, made nearly thirty years ago, from 
which the inference is a fair one that he was in the Democratic party 
with intent *'to betray the Constitution and its friends into the 
cruel clutches of their enemies " whenever he could find an oppor- 
tunity. 

But you are not satisfied with this. To make the brand inefface- 
able, you show that several years after his declaration to Mr. Chase, he, 
being an avowed advocate and champion of Democratic principles, was 
either appointed by his political brethren, or else volunteered, to an- 
swer an abolition lecture delivered at Steubenville by a man named 
Weld. He disappointed all parties, including the lecturer himself, by 
declining to come forward, though very pointedly called for. He 
made no excuse at the time for deserting the cause he had under- 
taken, but afterward he slipped round secretly and alone to the pri- 
vate room of the lecturer and gave himself in as a convert. "I 
meant," said he, "to fight you, but my guns are spiked, and I came 
to say that I now see with you," etc. It never struck Mr. Weld that 
there was anything sneaking or shabby about this transaction. With 
the obliquity of vision peculiar to his political sect, he saw nothing 
but '^hearty frankness, independence, moral insight, and keen mental 
force " in the conduct of a man who privately denounced the opinions 
and principles which he publicly supported ; and twenty-five years 
afterward Mr. Weld piously thanks God on paper for such an artful 
dodger to serve as a leader of his party. 

The next place you find him after the Steubenville affair is in the 
van of the Ohio Democracy. They, too, believed in the "hearty 
frankness and independence" of the declaration he made to them. 
They showed their faith by their works ; the Legislature, by a strict 



POLITICAL ESSAYS AND LETTERS. 273 

party vote, elected him Law Eeporter, an office wliicli lie sought eagerly, 
and received with many thanks. 

In all the conflicts of the Buchanan Administration with the aboli- 
tionists and their allies, he was an open-mouthed opponent of the 
latter. He was always sound on the Kansas question, and faithful 
among the faithless on the Lecompton Constitution. So far as we, 
his Democratic associates, were permitted to know him, no man de- 
tested more than he did the knavish trick of the abolitionists in pre- 
venting a vote on slavery, by which it would have been expelled from 
Kansas, and the whole trouble settled in the way they pretended to 
wish. He was out and out for Breckinridge in 18G0, and regarded the 
salvation of the country as hanging on the forlorn hope of his election. 
To Mr. Buchanan himself, and to the members of his Cabinet, he 
paid the most assiduous court, was always ready for an occasion to 
serve them, and showed his devotion in ways which sometimes went 
rather too close to the verge of obsequiousness. 

While we were looking at this side of his character, and supposing 
it had no other, he was, according to your understanding of his his- 
tory, in "entire agreement" with the deadly enemies of every prin- 
ciple we believed in. 

The mere fact that he paid visits to Dr. Bailey is nothing. It is 
nothing that he there met abolition people. All that might happen, 
and his fidelity to the Constitution would moult no feather. But you 
mention it as a remarkable circumstance, and it was remarkable, be- 
cause abolitionists exclusively were in the habit of assembling there to 
talk over their plans, to concoct their slanders against the Adminis- 
tration, and to lay their plots for the overthrow of the Government 
and laws. It was a place where men congregated for political, not 
merely for social purposes, and Mr. Stanton knew he would be de trop 
unless he was one of them. He accordingly made himself not only 
acceptable, but interesting, by telling them that he was of Quaker 
blood, and got his abolitionism by inheritance ; his grandfather liber- 
ated his slaves — he did — and purged the family of that sin ; and Ben- 
jamin Lunday took him on his knee when he was a little boy and 
taught him the political doctrine which he had never forgotten, but 
which he had opposed by every open act of his life. He was probably 
fresh from one of these symposia when he went into court in the 
Sickles case, and loudly bragged that he was the son of slave-holding 
parents ; his father was a North Carolinian, and his mother a Virgin- 
ian. You may see that part of his speech on page 51 of the printed 
trial. It is hard to run with the hare and hunt with the hounds, but 
Stanton seems to have mastered the difficulty. 

Mr. Sumner's testimony to the early and thorough-going aboli- 
tionism of Mr. Stanton is entitled to great weight, because it is coupled 
with an act which attests its entire sincerity. It is a part of his cer- 



274 POLITICAL ESSAYS AND LETTERS. 

tificate that when Mr. Stanton's nomination as Secretary of War was 
sent to the Senate, he (Sumner) immediately rose to urge the confir- 
mation, stated his acquaintance with the nominee, and said, emphat- 
ically, ''Within my knowledge, he is one of us." Mr. Sumner cer- 
tainly would not have made such a declaration at such a time, and 
for sucli a purpose, itnless he had the clearest conviction, based upon 
personal knowledge, that Mr, Stanton was an abolitionist of the most 
virulent type, prepared to tread the Constitution and the statute-book 
under his feet, and ready to go all lengths for the subversion of liberty 
and justice. 

There is another fact coiToborating your view, which yon have not 
mentioned, but of which you are fairly entitled to the benefit. When 
Mr. Stanton went into the War Department, he immediately began 
to act with reckless disregard of his sworn duty. He surrounded him- 
self with the most loathsome miscreants, and used them for the foulest 
purposes. Law, justice, and humanity were utterly outraged. Those 
who knew him as I did, and had heard him curse the perpetratore of 
such crimes only a month or two before, exercised the charity which 
believeth all things, and concluded that he was moved by some head- 
long impulse which had suddenly revolutionized all his thoughts, 
feelings, and principles of action. But your proofs show that in the 
kindness of our construction we did not give heed enough to the max- 
im, Nemo repente ficit turpissimns. Such a depth could not be 
reached by a single plunge. The integrity of his moral nature must 
have previously undergone that gradual process of decomposition which 
could result only from long and sympathetic association Avith the 
enemies of the Constitution. 

On the whole, it must be admitted that you have made out this 
part of your case. With Democrats he was a Democrat, enjoying their 
confidence and taking their favors, while he caused it to be well un- 
derstood among "men of your school in morals and politics" that his 
devotion to the democracy was entirely simulated. It is now also 
clear, beyond doubt, that to Southern men he avowed himself a full- 
blooded secessionist. The testimony of Governor Brown to that effect 
is as good as any that you have produced to prove him an abolitionist, 
and you have made the fact so probable in itself that very slight proof 
would be sufficient to establish it. 

Is not my conclusion a fair one from the premises that this is the 
most " marvelous " imposture upon record ? Does the history of the 
world hold on all its pages of wonders another case in which a man 
has raised himself to the highest public employments, under two dif- 
ferent parties of diametrically opposite and hostile principles, by 
making simultaneous professions of fidelity to both of them ? Do not 
mention Sunderland, for his hypocrisy gained him nothing ; nor Tal- 
leyrand, for he was merely a trimmer ; nor Benedict Arnold, for he 



POLITICAL ESSAYS AND LETTERS. 275 

acted his double part only during a few months, and closed it with 
ignominious failure. To find a parallel, you must go to another scene 
of action, and a far lower line of life. Jonathan Wild for twenty 
years imposed himself on the London police as an honest man and a 
most zealous friend of justice, pretended to assist the officers in their 
business, and shared richly in their rewards ; but during all that time 
he was the adviser, the "guide, philosopher, and friend" of the prin- 
cipal thieves in the city, and to them he constantly betrayed the 
measures taken by the public authorities for the preservation of order 
and law. 

II. We are directly at issue upon the question whether or not Mr. 
Stanton advised President Buchanan, before his appointment as At- 
torney-General, that war might be legally made against the States, 
and the people thereof, in which ordinances of secession had been 
passed, by way of coercing them to remain in the Union. You say 
he was sent for by the President and gave him that advice, accompa- 
nied by an argument in writing, which was so convincing that it was 
inserted in the first draft of the message, but afterward stricken out. 
No such paper being in existence, and Mr. Buchanan as well as Mr. 
Stanton being dead, your allegation is easily made ; if it be true, it is 
hard to prove, and though false, it is harder still to disprove. The 
evidence you produce is Mr. Dawes's statement that Mr. Stanton told 
him so. I say nothing about the danger of relying on the accuracy 
of a conversation, reproduced from mere recollection, after so long a 
time ; but I answer that it is not true for the following reasons : 

1. Mr. Buchanan made it a rule never to seek advice from out- 
siders on legal questions. When he was in doubt, he took the opinions 
of those who were officially responsible for their correctness. He had 
no kitchen cabinet. 

2. If he had made this an exceptional case, and taken Mr. Stanton 
into his counsels by the back stairs, and if Mr. Stanton had furnished 
him with a paper which produced conviction on his mind that all his 
constitutional advisers were wrong, he would most certainly have 
shown it to them, or told them of it. 

3. Mr. Stanton was a lawyer of undoubted ability, and the absurd 
opinion which you attribute to him could not have found a lodgment 
in his mind, even for one moment. 

4. If he had really entertained such a notion, and desired in good 
faith to impress it upon the Administration, he would not (I think he 
could not) have concealed it from me. It would have been contrary 
to the whole tenor of liis behavior in those days, and, what is more, very 
much against his own interests. 

5. He did express views exactly the opposite of those which you 
say he urged upon the President. He indorsed the opinion which I 
gave on the 20th of November, 1860, in extravagant terms of appro- 



276 POLITICAL ESSAYS AND LETTERS. 

bation, adhered steadily to the doctrines of the annual message, and 
when required officially to pronounce upon the special message of 
January, 1861, he gave his concurrence heartily, strongly, and un- 
equivocally. In all the discussions upon the subject, he did not once 
intimate that there was, or ever had been, the slightest difference be- 
tween him and the other members of the Administration. Do you 
mean to say that this was mere sham ? Was he so utterly devoid of 
all sincerity, honor, and truth, that he gave the whole weight of his 
influence and power to the support of a doctrine which he believed to 
be not only false, but pernicious ? If he was such a knave as that, 
then tell me what reliance can be placed on any statement he may 
have made to Mr. Dawes. 

III. Did he betray the Buchanan Administration while he was a 
member of it ? Was he false to the principles that he pretended to 
believe in ? Was he treacherously engaged with you in trying to 
defeat the measures he was trusted to support ? Did he aid, and 
strengthen, and assist you in your efforts to blacken the reputation of 
his associates and friends ? Before these questions are answered, let 
us look for a moment at the situation we were in. 

Mr. Buchanan was compassed round on all sides with more diffi- 
culties and dangers than any other public man in this country ever 
encountered. The party which elected him was perfectly routed ; its 
force wasted by division, its heart broken by defeat. Every Northern 
State was in the hands of enemies, flushed with the insolence of newly 
acquired power ; and after his official condemnation of secession, the 
South fell away from his side in a body. With bitter, remorseless, 
unrelenting foes in front, and flank, and rear, he was literally unsup- 
ported by any political organization capable of making itself felt. 
But he was *' shielded, and helmed, and weaponed with the truth," 
and he went right onward in the j^ath made sacred by the footsteps of 
his great predecessors. He declared the secession ordinances mere 
nullities ; the Union was not for a day, but for all time ; a State 
could not interpose itself between the Federal Government and indi- 
vidual citizens who violated Federal laws ; the coercive power did not 
apply to a State, and could not be used for purposes of indiscriminate 
carnage in which the innocent and the guilty would be mingled to- 
gether ; but the laws must be executed, and the just rights of the 
Federal Government maintained in every part of the country against 
all opj)Osers. The whole theory of the Constitution, as expounded by 
the men that made it, and all their successors down to that time, jus- 
tice, humanity, patriotism, honor, and conscience, required him to 
announce and maintain these principles. They were not only true, 
but were either expressly or impliedly admitted to be true by all ex- 
cept the open avowed enemies of the Union. The secessionists, of 
course, had trained themselves to a different way of thinking, and 



POLITICAL ESSAYS AND LETTERS. 277 

they immediately assumed an attitude of pronounced hostility to the 
Administration. The foremost of the abolition orators and the lead- 
ing newspaper organ of the so-called Eepublican party took the high 
ground that the Southern States had a right to break up the Union 
if they pleased, and could not justly be opposed. But though they 
" drew much people after them," and gave great encouragement to 
the insurrectionary movement, no man who was at once honest, intel- 
ligent, and true to the country, failed to see the wisdom of the Presi- 
dent's views. The President elect indorsed them fully on his way to 
the capital, as he did afterward by his oflBcial action. From all 
quarters addresses and petitions came up, which showed the popular 
appreciation of them. Even the Massachusetts Legislature, without 
one dissenting voice in its more numerous branch, and by an over- 
whelming majority in the other house, passed a solemn resolution 
approving them in the strongest language, and offering to aid in 
carrying them out. But everything depended on Congress ; and what 
did Congress do ? Both Houses were completely in the hands of shal- 
low partisans, who were either too stupid to understand their duty, or 
too dishonest to perform it. The men of most ability and integrity 
whom Eepublican constituents had sent there — such men, for instance, 
as Charles Francis Adams— were heard but not heeded. The Presi- 
dent, thoroughly informed on the whole subject, communicated all 
the facts in a special message, told Congress that the powers confided 
to him were wholly inadequate to the occasion, demonstrated the ab- 
solute necessity of further legislation, and implored them not to post- 
pone it, for the danger, imminent then, was increasing with every 
moment of delay. To all this they were as deaf as adders. They 
could be reached by no appeal to their hearts or consciences. They 
neither adopted the executive recommendation, nor gave a reason for 
refusing. If any measure, having the least tendency either to restore 
peace or prepare for war, got so far as to be proposed, it was uni- 
formly referred to a committee, where it was sure to be quietly stran- 
gled. The issues of life and death to the nation hung upon their 
action, and they would not lift a finger to save it. No legislative 
body, since the beginning of the world, ever behaved in a great crisis 
with such scandalous disregard of its duty. 

But if there were no statesmen among the managers of that Con- 
gress, there were plenty of demagogues ; if they were indifferent to 
the fate of the nation, they were intensely alive to the interests of 
their faction ; if the regular committees slept supinely on the great 
public questions submitted to them, the secret committee, spawned by 
a caucus, went prowling about with activity as incessant as it was 
stealthy and malignant. You could not gainsay the views which the 
Administration took of their own duty or yours, nor deny the wisdom 
of the recommendations they made ; but you could, and did, answer 



278 POLITICAL ESSAYS AND LETTERS. 

them with a storm of personal detraction. The air was filled with 
falsehood ; the atmosphere was saturated with slander, the voice of truth 
was drowned in "the loud roar of foaming calumny." This crusade 
was conducted with so much vigor and success that some members of 
the Administration were pursued into private life by the rage of the 
partisan mob, and thousands of the worthiest men in the land were 
actually imprisoned and persecuted almost to death, for nothing worse 
than expressing a friendly opinion of them. The messages of the Presi- 
dent will stand for ever a monument to the wisdom, foresight, and 
honest patriotism of the executive Administration, while history will 
proclaim through all time the dishonor of that Congress which could 
answer such appeals with nothing but vituperation and insult. 

It was at such a juncture that Mr. Stanton was appointed to take 
a high and most confidential place in the Administration. His lan- 
guage glowed with gratitude, his words spoke all the fervor of personal 
devotion to his chief and his colleagues ; he gave his thorough approval 
to the measures which they thought necessary to preserve the unity of 
the nation in the bonds of peace. Yet you inform us that he did im- 
mediately put himself in communication with the opposition ; sought 
out you and others whom he had never known before, and sought you 
solely because you were enemies of the Administration ; offered him- 
self as your spy, and did act for you in the capacity of a false delator ; 
went skulking about at midnight to aid you in defeating the measures 
which with us he pretended to support ; forgathered with your secret 
committee, and gave you assistance in carrying on your personal war- 
fare against his benefactors ; nay, worse than all that, he helped you 
to trump up a charge of treason against one of his colleagues— a charge 
which he knew to be false— a charge for which, if it had been true, 
that trusting friend might lawfully, and would deservedly, have been 
hanged by the neck till he was dead. Oh ! it was too foul ; it was 
base beyond the lowest reach of comparison. If your story be un- 
founded—if Stanton, after all, was a true and honorable man— how will 
you answer in the Judgment day for this horrible outrage on his mem- 
ory and on the feelings of his friends ? 

" If thou dost slander Mm and torture «s, 
Never pray more; abandon all remorse; 
On horror's head horrors accumulate; 
For nothing canst thou to damnation add 
Deeper than that." 

But let justice be done though the heavens should fall. Some, at 
least, of your statements are true, unless Mr. Dawes, Mr. Howard, Mr. 
Seward, and Mr. Sumner have volunteered to help you by sacrificing 
the character of ''the great Secretary." 



POLITICAL ESSA YS AND LETTERS. 279 

I will not waste time upon the details which jour witnesses have 
given of his treachery. It appears to have been a free-will offering of 
his own, induced by no solicitation of yours, but tendered by himself 
ex mero motu. The moment he was inducted into office he looked 
about to ascertain who were the bitterest and most malignant enemies 
of the men to whom he owed all his public importance and much of 
his private prosperity. He found them quickly, and, though they 
were entire strangers to him, he put himself immediately into secret 
communication with them, took service under them as their regular 
spy, and exercised himself diligently in that base vocation, making re- 
ports to them daily, and sometimes twice a day, until the close of his 
official term, when his occupation necessarily ceased. This mean em- 
ployment must have taken up most of the time which should have been 
devoted to the duties of an office on which the public business, always 
heavy, was then pressing with unusual weight. 

He did not communicate any knowledge which was necessary to 
guide you in the discharge of your duties, for every fact of that kind 
was as accessible to you as to him ; the Administration kept nothing 
back ; the President volunteered to give all he knew concerning the 
state of the Union ; no department was closed against your investiga- 
tions ; every call for information was promptly and fully answered. If 
that had not been enough, every member of the Cabinet would have 
been perfectly free to speak with any member of Congress, or to go 
in person before any committee. Mr. Seward did confer with me 
fully at the State Department in open daylight, without any dodging 
about it ; and he was always welcome, as he is now, to tell everything 
that passed, for he neither asked nor could have asked any question, 
if the country had an interest in it, which I was not willing to answer. 
"With all the channels of truthful information thus open and unob- 
structed, you preferred to get what you wanted from a spy. Mr. 
Howard has the cheek to proclaim that during the " labors " of his 
committee, instead of acting upon honest and legitimate evidence, he 
sent inquiries to this secret informer, who answered by giving infor- 
mation of "great importance,'*^ but his communications ''were always 
indirect and anonymous ! " 

If there be one sentence in your whole article which is marked 
more than another with your characteristic hardihood of assertion, it 
is that in which you try to make a merit of Stanton's treachery. It is 
curiously reckless, and for that reason worth giving in your very 
words. " These facts," say you, " were stated to illustrate Mr. Stan- 
ton's exalted patriotism, which prompted him to rise ahove the claims 
and clamors of partisanship, and to invoke the aid of loyal men leyond 
the lines of his own party, and outside of the Administration of which 
he was a member, to serve his imperiled country, menaced with a foul 
and wicked revolt." Why, this is precisely what the President and 



I 



280 POLITICAL ESSAYS AND LETTERS. 

all the honest men of his Cabinet were doing openly and above board. 
They had no legal power which could avail to serve the " imperiled coun- 
try " without the co-operation of Congress, which was wholly ruled 
by the ojjposition. They invoked '' the aid of loyal men beyond the lines 
of their own party and outside of the Administration," because it was 
from thence only that aid could come. But with you and your associ- 
ates the " claims and clamors of partisanship " were so much higher than 
considerations of public duty, that you not only refused all aid to the 
country, but you insulted, and abused, and vilified the President and 
his friends for asking it. Was Stanton, like the other members of the 
Administration, invoking aid for the imperiled country ? Did he 
skulk about in secret to effect in that way what his brethren were try- 
ing to accomplish by an open appeal to the reason and conscience of 
their political oi)ponents ? If so, how did he succeed ? Did his se- 
cret, anonymous, and indirect communications ever produce the slight- 
est symjitom of patriotic emotion in the minds of those who received 
them ? What did you, or Mr. Sumner, or Mr. Dawes, or Mr. How- 
ard, or Mr. Seward, do to avert the great calamity of civil war ? 
What measures did any of you bring forward to serve the country ? 
In that hour of peril what man among you acted like a man ? Which 
of you ''rose to the height of that great argument," or showed himself 
fit in mind or heart to meet the resjionsibilities of the time ? The 
Union was indeed " menaced with a foul and wicked revolt," and all 
you did was to "let the Union slide." The public danger excited no 
anxiety in your minds ; public affairs received no attention at your 
hands ; but you were all the while mousing about after some personal 
calumny by which you hoped to stir up the popular passions against 
the true friends of the country ; and Stanton, unless you slander him, 
made love to the infamous business of helping you. 

You have given us but small samples of the " indirect and anony- 
mous communications " which Stanton made to you and your asso- 
ciates. The bulk of them must be enormous. He was engaged for 
two or three months fabricating at least one tale every day for Mr. 
Seward, and another consisting of " the most startling facts " to suit 
the needs of Mr. Howard, while you and Mr. Dawes were gratified in 
a similar way at the same time. Are these "startling facts" held 
back for some other funereal occasion ? Take notice yourself, and tell 
your friends, that while their stories are hid away from the light, the 
presumption that they are not only false, but known to be false, is 
growing stronger and stronger every day. You had better open your 
budgets at once. 

There is a point or two here on which I would like to draw you 
out. Mr. Seward says that he and Mr. Stanton discussed and settled 
measures. The topic which absorbed the attention of all minds at 
that time was Fort Sumter. Compared to that, all others were insig- 



POLITICAL ESSAYS AND LETTERS. 281 

nificant ; and of course the measures relating to it were not overlooked. 
It is known, from the published statements of Mr. Welles, Judge 
Campbell, and others, that Mr. Seward was deeply engaged in a plot 
to surrender that fort, which plot he afterward brought to a head, and 
by sundry tricks nearly made it successful. Stanton professed to 
agree with us that the fort ought to be kept ; but you have shown tliat 
his professions in the Cabinet were not very reliable, and Governor 
Brown has proved that he could be a secessionist as well as anything 
else, if occasion required it. Now, what did they settle upon about 
Fort Sumter ? They were engaged in something which both knew to 
be disreputable if not criminal ; their secrecy, their employment of a 
medium, their quick dodge when they met on the street, the mortal 
terror of detection which they manifested throughout, all show 
plainly enough that they had no honest object. Tell us if they wore 
contriving a plan to put the strongest military fortress of the Govern- 
ment into the hands of its enemies. 

The midnight meeting between Messrs. Sumner and Stanton is in 
all its aspects the most astounding of historical revelations. If you 
recall Mr. Sumner to the stand, it is hoped that he will see the neces- 
sity of being much more explicit than he has yet been. From what 
he has said, it appears that Stanton "described to him the determina- 
tion of the Southern leaders, and developed particularly their i)lan to 
get possession of the national capital and the national archives, so 
that they might substitute themselves for the existing Government." 
This is so extremely interesting that it would be a sin against the pub- 
lic not to examine it further. 

Early in the winter somebody started the sensational rumor that 
on or before the 4th of March a riot would be got up in Washington, 
which might seriously endanger the peace of the city. It was dis- 
cussed and talked about, and blown upon in various ways, but no tangi- 
ble evidence of its reality could ever be found. The President re- 
ferred to it in a message to Congress, and said he did not share in 
such apprehensions ; but he pledged himself in any event to preserve 
the peace. "When the midnight meeting took place, the rumor had 
lived its life out — had paid its breath to time and the mortal custom 
of such things at Washington ; it was a dead canard which had ceased 
to alarm even women or children. This was certainly not the sub- 
ject of the communication made that night at one o'clock. Stanton 
did not surround himself with all the adjuncts of secrecy, darkness, 
and terror, to tell an old story which had been in everybody's mouth 
for weeks before, of an impossible street riot by the populace of Wash- 
ington. What he imparted was a secret not only new, but deep and 
dangerous, fit for the occasion, and worthy to be whispered confiden- 
tially at midnight. He disclosed a ^^ plan of the Southern leaders to 
get possession of the capital and the archives, and to substitute theni' 



282 POLITICAL ESSAYS AND LETTERS. 

selves for the existing Governme?it.'^ It was a coup d'etat of the first 
magnitude — a most stupendous treason. This plan Mr. Stanton " de- 
veloped particularly, '' that is to say, gave all the details at length. 
Mr. Sumner manifestly believed what he heard ; he received the reve- 
lation into his heart with perfect faith ; and he did not underestimate 
the public danger ; but he did nothing to defeat the treason, or even 
to expose it. He was thoroughly and minutely informed of a plan 
prepared by Southern leaders to revolutionize the Government, and 
he kept their counsel as faithfully as if he had been one of themselves. 
He took Stanton's frightful communication as quietly as he took the 
President's message. Nothing could stir his sluggish loyalty to any 
act which might tend to save his "imperiled country." 

Mr. Sumner says that when Mr. Stanton made these statements to 
him he was struck ''by the knowledge he showed of hostile move- 
ments.'" That is precisely what strikes me also with wonder and 
amazement. Where in the world did he learn " the determination of 
the Southern leaders " ? Where did he get an account of the intended 
coup d'etat so detailed that he was able to develop it particularly ? This 
knowledge becomes astounding when we recollect that, so far as now 
appears, nobody else outside of the " Southern leaders " had the least 
inkling of it. Is it possible that his connection with the secessionists, 
and his professed devotion to their cause, went so far that they took 
him into their confidence, and told him what " hostile movements " 
they intended to make on the Government ? How did he get these 
secrets if not from them ? Or must we be driven at last to the conclu- 
sion that the whole thing was a mere invention, imjaosed on Mr. Sum- 
ner to delude him ? 

But Mr. Sumner owes it to the truth to make a fuller statement. 
Let us have the particulars which Mr. Stanton developed to him. We 
have a right to know not only who were the Southern traitors engaged 
in this plan, but who were confederated with them in Washington. I 
suppose Mr. Sumner, as well as Mr. Stanton, had ** instinctive in- 
sight into men and things " enough to know that no government was 
ever substituted for another by a sudden movement, without some co- 
operation or connivance of officers in possession. Who among Stan- 
ton's colleagues did he say was engaged in this affair ? Did he charge 
the President with any concern in it ? If he declared all or any of 
them to be innocent, does not Mr. Sumner see the injustice of keeping 
back the truth ? Did Stanton tell him that he had communicated 
the facts to the President and Cabinet ? If no, did he give a reason 
for withholding them ? And what was the reason ? Was the guilty 
secret confined to his own breast, or did any other member of the 
Administration share his knowledge of it ? If yes, who ? Mr. Sum- 
ner has struck so rich a vein of historical fact (or fiction) that he is 
bound to give it some further exploitation. 



POLITICAL ESSAYS AND LETTERS. 283 

The following passage in Mr. Sumner's letter to you excites the 
liveliest desire for more information. After describing his visit to the 
Attorney-General's office, and Mr. Stanton's reception of him, he goes 
on thus : " He began an earnest conversation, saying he must see me 
alone — that this was impossible at his office — that he was watched by 
the traitors of the South — that my visit would be made known to them 
at once ; and he concluded by proposing to call on me at my lodgings 
at one o'clock that night," etc., etc. Why was Mr. Stanton afraid of 
the Southern traitors ? Why did they set a special watch over him ? 
No other member of the Administration was tormented with a fear 
like that. All of Mr. Stanton's colleagues felt at perfect liberty to 
speak out their opposition to the hostile movements of the South, and 
they all did it without concealment or hesitation. But Stanton was 
j)ut by the Southern traitors under a surveillance so strict that he 
could not speak with a Senator except at midnight, by stealth, and in 
secrecy. At his own office it was impossible to see such visitors ; the 
Southern eye was always on him. How did those traitors of the South 
manage to control liim as they controlled nobody else ? By what 
means did they " cow his better part of man," and master all his 
movements ? What did they do, or threaten to do, which made him 
their slave to such a fearful extent ? His relations with them must 
have been very peculiar. The suspicion is not easily resisted that he 
had his nocturnal meetings with Southern men also, and that he 
feared simply the discovery of his double dealing. This is what we 
must believe if we suppose that he really was shaken by unmanly ter- 
rors. But I confess my theory to be that he did not feel them, and 
that he made a pretence of them only that he might fool Mr. Sumner 
to the top of his bent. What does Mr. Sumner himself think ? Was 
he, or was he not, the victim of a cruel humbug ? 

IV. Did Mr. Stanton conspire with the political enemies of the 
Administration to arrest Mr. Toucey on a false charge of treason ? 
That such a conspiracy existed seems to be a fact established. What 
you say about it shows that you knew and approved it. Mr. Dawes 
and Mr. Howard were in it, and no doubt many others who have not 
confessed it themselves, or been named by you. But Mr. Stanton was 
not with you. The evidence of his complicity which you produce is 
altogether too indefinite, indirect, and obscure to convict him of so 
damning a crime. The enormous atrocity of the offence makes it im- 
possible to believe in his guilt without the clearest and most indubita- 
ble proof. 

Stanton and Toucey were at that time acting together in perfect 
harmony, closely united in support of the same general measures and 
principles. Toucey, at all events, was sincere ; and Stanton knew him 
to be a just, upright, and honorable man, whose fidelity to the Union, 
the Constitution, and the laws was as firm as the foundation of the 
19 



284 POLITICAL ESSAYS AND LETTERS. 

everlasting hills. To Toucey himself, and to his friends, he never ex- 
pressed any sentiment but esteem and resj)ect, and he declared his con- 
fidence in him even to Mr. Seward, who was his enemy, as yon your- 
self have taken the pains to prove. Was the destruction of this man 
one of the purposes for which the first law-officer of the Government 
sneaked about among your secret committees, met the plotters in their 
midnight lurking-places, employed a go-between to fetch and carry 
his clandestine messages, and, like a treacherous informer, wrote accu- 
sations which he trusted even to the hands of his confederates only 
while they were read in the light of a street-lamp ? 

There were two distinct and separate ways in which the conspira- 
tors could effect their designs upon the man whom they had marked 
out for their victim. One was to take him into custody under a legal 
warrant, regularly issued by a competent judicial officer. But to get 
such a warrant it was absolutely necessary that somebody should per- 
jure himself, by swearhig that Toucey liad levied war against the 
United States. Was Stanton to make this false oath, in addition to 
the other proofs which he gave of his loyalty ? Or was it expected 
that Peter 11. Watson, who carried the charges, would swear to them 
also ? If you did not rely on Stanton or Watson, was it you, or Mr. 
Dawes, or Mr. Howard — which of you — that meant to do the needful 
thing ? Or was it intended that all three of you should entwine your 
consciences in the tender embrace of a joint affidavit ? Or had you 
looked out for some common "man of Belial," who was ready to be 
suborned for the occasion ? No, no ; you may have been eager to feed 
fat the ancient grudge you bore against Toucey for being a Democrat 
and a "Union-saver," but none of you would have sworn that he was 
guilty of any criminal offense. Nor could Stanton or Watson have 
been persuaded to encounter such peril of soul and body. Nor could 
you, if you had tried your best, have found any other person to make 
the accusation in the form of a legal oath. The price of perjury was 
not then high enough in the Washington market to draw out from 
their hiding-places that swarm of godless wretches who afterward 
swore away the lives of men and women with such fearful alacrity. 

From all this it is very clear that there was to be no swearing in the 
case, consequently no judicial warrant, and no lawful arrest. But 
Toucey was to be arrested. How ? Of course in the only other way 
it could possibly be done. The conspirators intended to kidnap him. 
Mr. Dawes says that from the hour when the paper directing the ar- 
rest was read, under the street-lamp, and " went back to its hiding- 
place," the Secretary was watched. The members of the committee, 
or the hirelings they employed, dogged his footsteps, and were ready 
to spring upon him Avhenever they got the signal. They could rush 
ont as he passed the mouth of a dark alley, knock him down with 
their bludgeons, and drag him off. Or the lawless and "patriotic" 



POLITICAL ESSAYS AND LETTERS. 285 

gang might burglariously break into his house in the night-time, 
and, impelled, as you would say, by "high and holy motives," take 
him by the throat and carry him away. After proceeding thus far, 
it would be necessary to dispose of him in some 'private dungeon (for 
you knew that the public prisons and forts could not then be prosti- 
tuted to such base uses), where no friend could find him, and whence 
no complaint of his could reach the open air. Even in that case, 
''with all appliances and means to boot," his speedy liberation would 
be extremely probable, and the condign punishment of the malefactors 
almost certain, unless they acted upon the prudent maxim that " dead 
men tell no tales." The combination of Booth and others to kidnap 
Mr. Lincoln was precisely like this in its original object ; and it was 
pursued step by step, until it ended in a most brutal murder. FaciUs 
descensus Averni. 

Was this a becoming business for Senators and Representatives to 
be engaged in ? In that ''hour of national agony," when hideous 
destruction stared the country in the face ; when stout men held 
their breath in anxious dread ; when the cry for relief came up to 
Congress on the wings of every Avind ; when the warning words of 
the President told you that the public safety required your instant at- 
tention — was that a time to be spent in prosecuting plots like this ? 
I will not ask you to repent of the wickedness ; it is not wrong in 
your eyes ; it comes up to your best ideas of loyalty, patriotism, and 
high statesmanship. Your witnesses think of it as you do ; they take 
pride and pleasure in their guilt, and wrap this garment of infamy 
about them with as much complacency as if it were a robe of imperial 
purple. 

But was Stanton in it ? "Was the Attorney-General art and part 
in a foul conspiracy to kidnap the Secretary of the Navy, "his own 
familiar friend, his brother who trusted in him, and with whom he 
ate bread " ? If he had sent the paper which was read under the street- 
lamp, why do you not produce it, or at least show by secondary evi- 
dence that it was in his handwriting ? If Mr. Watson was the medi- 
um through whom he communicated his verbal directions to the com- 
mittee or other persons confederated with him, why does not Mr. 
Watson appear and say so ? To fasten this great guilt on Stanton 
will require evidence far better than Mr. Howard's small and silly 
talk about "a bird which flew directly from some Cabinet minister," 
and stronger than his lelief founded on the fact that Stanton was a 
" suspicious character," especially as Mr. Howard admits his own par- 
ticipation in the crime, and is therefore something more than a " sus- 
picious character " himself. But it is not merely the defects in the 
proof — it is the incredible nature of the story which counts against 
you. Stanton knew, if you did not, that the contemplated crime 
could not be perpetrated with impunity. Toucey breathed the deep 



28G POLITICAL ESSAYS AND LETTERS. 

breath and slept the sound sleep of a freeman under the guardiansliip 
of a law which Stanton at that time did not dare to violate. A Dem- 
ocratic Administration still kept ward and watch over the liberty of 
the citizen. A vulgar tyranny which allowed abolitionists to do such 
things upon their political opponents was coming, but it had not 
come ; the reign of the ruflfian and kidnapper was drawing near, but 
it had not arrived ; the golden age of the spy and the false accuser 
was beginning to dawn, but it had not yet risen. 

You may think it some excuse for this false charge against Mr. 
Stanton that it is not much worse than others which you have proved 
to be true. But Justice requires that even bad men shall suffer only 
for those misdeeds which they have actually done. One of the great- 
est among American jurists held a slander to be aggravated by 
proof that the victim's character was bad before ; just as a corporal 
injury to a sick man or a cripple is a worse wrong than it would be to 
one of sound limbs and vigorous health. 

V. Mr. Stanton's personal behavior and bearing in the Cabinet 
have been much misrepresented by others besides you. I am told that 
Mr. Seward described the supposed " scene " in some speech, which I 
have never read. It was given at length, and very circumstantially, 
in a London paper, over the signature of T. W. ; Mr. Attorney-Gen- 
eral Hoar, in a solemn oration which he pronounced before the Su- 
preme Court last January, repeated it with sundry rhetorical embel- 
lishments ; nearly all the newspapers of your party have garnished 
their pointless abuse of the Buchanan Administration with allusions 
to it more or less extended ; and no doubt the book-makers in the 
sevice of the abolitionists have put it into what you call " contempo- 
raneous history." So far as I have seen them, all these accounts differ 
from one another, and none is exactly, or even very nearly, like yours. 
But they agree in presenting a general picture of Mr. Stanton as en- 
gaged in some violent conflict Avhich his colleagues Avere too dull, too 
unprincipled, or too timid to undertake, though some of them after- 
ward plucked up heart enough to follow his lead. They declare that 
Stanton took the most perilous responsibilities, boldly faced the most 
frightful dangers, and with heroic courage fought a desperate fight 
against the most fearful odds ; that the other members of the Cabinet 
looked on at the awful combat as mere spectators of his terrific valor, 
while the President was so frightened by the "fierce and fiery" en- 
counter that all he could do was to "tremble and turn pale." 

All thisi is (to use Stanton's own language) "a tissue of lies" ; a 
mere cock a,nd bull story ; a naked invention, purely fabulous ; a 
falsehood as gross and groundless as any in the autobiography of 
Baron Munchausen. Mr. Stanton was never exposed to any danger 
whatever while he was a member of that Cabinet ; never had any oc-, 
casion to exhibit his courage ; never quarreled with any of his col- 



POLITICAL ESSAYS AND LETTERS. 287 

leagues ; never denounced those lie differed from, and never led those 
with whom he agreed. He expressed liis dissent from the Southern 
members on several questions, but no man among us took better care 
than he did to avoid giving cause of personal offense. He acquired 
no ascendency at the council-board, and claimed none; he pro])osed 
no measure of his own, and when he spoke upon the measures origi- 
nated by others, he presented no views that were new or at all startling. 
He and I never once differed on any question, great or small ; and 
this, though of course accidental, was still so noticeable that he said 
he was there only to give me two votes instead of one. He did not 
differ with Mr. Holt on any important question concerning the South 
more than once, and that was when the compact, afterward called a 
truce, about Fort Pickens was made. He must have agreed with the 
President when he agreed with Mr. Holt, for the latter gentleman de- 
clared most emphatically that the President constanthj gave Jiim a 
''firm and generous support." He never insulted the President. 
Mr. Buchanan kncAV how to maintain the dignity of his place, and en- 
force the respect due to himself, as well as any man that ever sat in 
that chair. It is most certain that Mr. Stanton always treated him 
with the profoundcst deference. If he had been rash enough to take 
on the airs of a bully, or had ever made the least approach to the 
insolent rudeness for which you desire to credit him, he would in- 
stantly have lost his commission, and you would have lost your spy. 

Among the versions which have been given of this false tale, yours 
is the most transparent absurdity ; for you give dates and circum- 
stances which make it ridiculous. At a time when Floyd was in 
disgrace with the whole Administration — after all his brethren had 
broken with him, and he had been notified of the President's intention 
to remove him — when he was virtually out of office and completely 
stripped of all influence — Major Anderson removed his command from 
Fort Moultrie to Fort Sumter. You assert that Floyd, hearing of 
this, forthwith arraigned the President and Cabinet for the act of 
Major Anderson, declaring it to be a violation of their pledges, though 
it was not done by them, and they had given no pledge on the subject. 
That he could or would make an arraignment for any cause of the 
body by which he had himself just before been condemned is incredi- 
ble ; that he would arraign it on such a charge is beyond the belief of 
any sane being. But such, by your account, was the occasion which 
Stanton took to display his superhuman courage. It was then that he 
armed his red right hand to execute his patriotic vengeance on that 
fallen, powerless, broken man. He must also have let fall at least a 
part of his horrible displeasure on the head of the President ; else why 
did the President ''tremble and turn pale" ? I said this narrative of 
yours was mere driveling, and I think I paid it a flattering compli- 
ment. 



288 POLITICAL ESSAYS AND LETTERS. 

But to explode the folly completely, I referred you to the record, 
which I said would show that Major Anderson acted in strict accord- 
ance with orders sent him through the AVar Department, of which 
Floyd himself was the head ; and this you contradict. It is perfectly 
manifest that you examined the record, for you transcribe from it and 
print two telegrams exchanged between Floyd and Anderson after the 
removal of the latter took place. You saw on that same record the 
order previously given — the order on which Major Anderson was 
bound to act, and did act — and you have deliberately sujipressed it. 
Nay, you go still further, and with the order before your eyes you 
substantially deny the existence of it. I copy for your especial 
benefit the words which relate to this point : *' The smallness of your 
force (so say the instructions) will not permit you, perhaps, to occujiy 
more than one of the three forts ; but an attack, or an attempt 
to take possession of either one of them, will be regarded as an 
act of hostility, and you may then put your command into either 
of them which you may deem most proper to increase its power 
of resistance. You are also authorized to talce similar steps Avhen- 
ever you have tangible evidence of a design to proceed to a hostile 
act:' 

There is the order in plain English words. To make out your 
assertion it was necessary to conceal it, and you did conceal it from 
your readers. But that is not all. You find a telegram from Major 
Anderson, dated on the morning after the removal, in which he says 
simply that he has removed, but says nothing on the grounds on 
which he acted. On that same record, and right beside the telegram, 
you saw a letter from Major Anderson to the War Dej^artment, dated 
the same day, in which he does refer to his orders, and says, "Many 
things convinced me that the authorities of the State designed to pro- 
ceed to a hostile act,''' and then adds : "Under this impression I could 
not hesitate that it was my solemn duty to move my command from a 
fort which we could not probably have held longer than forty-eight or 
sixty hours to this one, where yny poiocr of resistance is increased to a 
very great degree." You totally ignore this letter, in which Major 
Anderson justifies his removal in the very words of the order, and 
pick out a hasty telegram, in which nothing is said of his orders, for 
the purpose of proving that he acted without orders — an assump- 
tion which the record, if honestly cited, would show to be utterly 
false. 

You will hardly venture to repeat your denial ; for besides the 
original record there are thousands of authentic copies scattered over 
the nation, and anybody can find it in Ex. Doc. H. E., vol. vi. No. 
26, page 10. I do not trust myself to make any general remarks 
on this glaring instance of mutilated evidence. You are a Senator, 
and I acknowledge the Scriptural obligation of a private citizen not 



POLITICAL ESSAYS AND LETTERS. 289 

to "speak evil of dignities" ; but of a dignity like you it is some- 
times so difficult to speak well that my only refuge is silence. 

You garble my words, so as to make them appear like a denial that 
Mr. Stanton ever wrote any letter at all on the subject of the "Cabi- 
net scene," whereas I asserted that no letter turitten by him luould cor- 
roborate your version of it. After coolly striking out from the sen- 
tence quoted the words which express my proposition, you proceed to 
contradict it by the statement of Mr. Holt, who says that a letter was 
written, but he declines to say wliat was in it. 

I knew that Mr. Schell had addressed Mr. Stanton with the object 
of getting him to tell the truth and tear away the "tissue of lies" 
which so many hands had woven about this subject. If he answered 
at all, the presumption was that he would answer truly ; and if he 
answered truly, instead of corroboi'ating you, he must have denounced 
the whole story as a mere fabrication. Do you think now that, in the 
absence of all evidence showing or tending to show the contents of the 
letter, we ought to assume that Stanton filled it with bragging lies ? 

I do not mean to let this stand as a mere question of personal ve- 
racity between you and me, though I have the advantage, '^vhicli you 
have not, of knowing whereof I affirm. But my denial throws the 
burden of proof upon you with its full weight. Recollect also that 
the strength of your evidence must be proportioned to the original 
improbability of the fact you seek to establish, and that the reasons a 
priori for disbelieving this fact are overwhelmingly strong. All pre- 
sumptions are against the idea that a man who dodged about among 
the abolitionists as their spy, and vowed himself to tlie secessionists as 
their ally, and all the time manifested a dastardly dread of being dis- 
covered, would openly insult the President, or do anything else that 
was bold and violent. But you have taken the task of proving it ; 
and how have you done it ? 

I certainly need not say that Mr, Holt proves nothing by writing 
a letter in which he declines to tell what he knows. His expressive 
silence, on the contrary, is very convincing that he knew the truth to 
be against you. As little, nay less, if less were possible, do you make 
out of his speech at Charleston. He deals there in glittering generali- 
ties, sonorous periods, and obscure allusions to some transaction of 
which he gives no definite idea, except that Stanton was not an actor 
in it, but a spectator ; for he mentions him only to say that "he looked 
upon that scene." What the scene was he declared to be a secret, 
which history will perhaps never get a chance to record. 

Failing wliolly to get anything out of Mr. Holt, you naturally 
enough resorted to Mr. Dawes ; and Mr. Dawes, willing, but unable 
to help you, called in the aid and comfort of his wife. "She," her 
husband says, "distinctly remembers hearing Stanton tell at our house 
the story of that terrible conflict in the Cabinet." That is the length 



290 POLITICAL ESSAYS AND LETTERS. 

and breadth of her testimony. She remembers that Mr. Stanton told 
the story, but not the story itself. It was about a terrible conflict ; 
but we do not learn who were engaged in it, who fell, or who was vic- 
torious — how the fray began, or how it ended — only it was terrible. 
Was Mr. Stanton the hero of his own story, or was he relating the 
adventures of somebody else to amuse or frighten the company ? Mrs. 
Dawes is undoubtedly a lady of the very highest respectability; but, 
with all that, you will find it hard to convert the idle conversations at 
her house into history ; and the difficulty is much increased by the 
fact that neither she nor anybody else is able to tell what they were. 

The declaration of Mr. Holt that he would not reveal what he knew 
on this subject, and Mr. Dawes's statement that Mrs. Dawes told him 
that she heard Stanton tell something about it which she does not re- 
peat, is all the evidence you offer on the point. Yet you affirm that 
this most improbable and slanderous story is not only true, but sus- 
tained by the ''declarations of Mr. Stanton to credible witnesses, and 
the positive averments of Joseph Holt." Can this be mere ignorance ? 
I am tempted to believe that you have gone about the business with a 
set purpose to make yourself ridiculous. 

I fear very much that on this question, as on so many others, you 
have been guilty of a willful suppressio veri. Did you not know that 
Mr. Holt's testimony would be against you, when you took advantage 
of his scruples about giving it ? Did not Mrs. Dawes recollect more 
than you have quoted ? I may be wrong in this suspicion ; but a man 
who mangles a public record must not complain if his good faith is 
doubted when he presents private evidence. 

Mr. Attorney-General Hoar, believing this scandal to be true, tried 
in good faith to get the evidence which would prove it. AVhen he 
found it to be false he passed over to you the letters which he had got 
in the course of his search, and you printed them. The la^vyer was 
too honest to reassert a tale which he discovered to be unfounded ; but 
the politician had not magnanimity enough to retract it ; and there- 
fore he let you burn your fingers where he would not put his own. 

The story of a " Cabinet scene," as it floated about among irre- 
sponsible newsmongers, seemed for a while like a formidable slander ; 
but you have made it utterly contemptible. 

VII. A word before we part about the two hundred and fifty thou- 
sand dollars raised out of the Treasury for Governor Morton. Taking 
your account of that business as correct, I proved in my former letter 
that it was in the highest degree criminal. You left no escape from 
the conclusion that the parties were guilty of embezzlement under the 
act of 184G. Your narrative of the transaction impressed it with all 
the marks of what is called in the flash language of Washington " a 
big steal." You showed that the parties themselves so understood it 
at the time, for you put a conversation into their mouths by which 



POLITICAL ESSAYS AND LETTERS. 291 

they are made to admit their liability to prosecution and imprison- 
ment. 

I saw plainly that this could not be true. Mr. Stanton's worst 
enemies never charged him with that kind of dishonesty, and Governor 
Morton had a reputation which placed him far above the suspicion of 
such baseness. Both of them may have had serious faults, but they 
would not rob the Treasury under any circumstances, or for any pur- 
pose. I asked three members of the Indiana delegation whether there 
was any foundation for your assertion ; they all answered no, and gave 
me the explanation which I used in my published letter. 

Your replication to this point is one of the most astonishing parts 
of all your wonderful production. I denied that Messrs. Stanton and 
Morton had committed a felony, and gave a version of the affair which 
showed them both to be perfectly innocent. You grow ill-tempered 
and vituperative upon this, and charge me with "unconcealed, not to 
say ostentatious, malignity." I confess this is turning the tables upon 
me in a way I could not have expected. In general, the malignity is 
presumed against the party who makes an injurious charge, not against 
him who repels it. 

There might have been some hope for you yet if you had recanted 
your first assertion, or admitted the errors of your statement, or made 
some effort to explain away the effect of it, by showing that you did 
not mean what you said. But you hold fast to every word of it ; not 
a syllable do you retract. On the contrary, you insist that it is ef- 
frontery in mo to affirm that a debt was duo to the State, and that it 
was paid according to law. What you say in your last, in addition to 
your first statement, makes the case look worse than it did before. 
But it is not true. The payment was not made on account of arms 
furnished to loyal citizens in rebellious States, nor was the money 
given to the Governor, to be disbursed by him on his own responsibil- 
ity, as agent of the President. That much I can say on the official 
authority of the present Secretary of War, who wrote me on the 27th 
of last month that " the transaction appears to be based upon the 
claims of the State of Indiana /or expenses incurred in raising volun- 
teers. " 

But Governor Morton is still above ground, and can take care of 
himself. If he made a raise out of the public Treasury without au- 
thority of law, and in defiance of the penal statutes in such case made 
and provided, he owes it to you to confess his guilt fully and freely. 
If he is innocent (as I believe him to be), it is due to himself and the 
memory of Mr. Stanton that he deny your allegations, and exhibit the 
true state of the facts, without delay. 

The sum of the case, as it now stands, is this : Mr. Stanton put 
into the hands of Governor Morton, not a warrant as you say, but a 
requisition, on which the Governor got out of the Treasury two hun- 



292 POLITICAL ESSAYS AND LETTERS. 

dred and fifty tliousand dollars. If this requisition was based on a 
just claim, and drawn against a fund appropriated to the payment of 
it, the whole transaction was perfectly honest, exceedingly common- 
place, and precisely similar to other acts done every day, before and 
since, by all the Secretaries — a simple discharge of routine duty, in- 
volving no responsibility whatever, no honor, and no blame. But it 
suited your ideas to glorify Stanton by declaring that he took the great 
responsibility of helping Mr. Morton to the money contrary to law, 
against the principles of common honesty, and in violation of his oath, 
thereby exposing both himself and his accomplice to the danger of 
prosecution and imprisonment in the penitentiary. This was the 
feather you stuck in his cap ; for this you think him entitled to the 
''grateful admiration of his loyal countrymen." I sought to deprive 
him of the decoration you bestowed on him, by showing that the money 
was paid according to law on a claim satisfactorily established, out of 
money regularly appropriated to that purpose. I tried to prove that 
it was not an embezzlement, and that there was nothing criminal in 
it. But this took the loyalty out of it, and left it without any merit 
in your eyes. Thereupon you fly into a passion and become abusive, 
which shows that your moral perceptions are very much distorted, and 
makes me fear, indeed, that you are altogether incorrigible. 

This paper has grown much longer than I intended to make it, and 
I have no space for the exhortations I meant to give you in conclusion. 
I leave you, therefore, to your own reflections. 



OPEN LETTER TO GENERAL GARFIELD. 

To Hon. James A. Garfield, Ilemier of Congress from Ohio : 

I HAVE read the speech you sent me. I am astonished and shocked. 
As the leader of your party, to whom the candidates have specially 
delegated the conduct of the pending camj)aign, you should have met 
your responsibilities in a very different way. I do not presume to 
lecture so distinguished a man upon his errors ; but if I can prevent 
you, even to a small extent, from abusing the public credulity, it is 
my duty to try. Premising only my great anxiety to preserve the 
fraternal relations existing between us for many years, I follow the 
Horatian rule, and come at once to " the middle of things." 

You trace back the origin of present parties to the earliest immi- 
grations at Plymouth and Jamestown, and profess to find in the op- 
posing doctrines then planted, and afterward constantly cherished in 
Massachusetts and Virginia, the germs of those ideas which now make 
Democracy and Abolitionism the deadly foes of each other. The 



POLITICAL ESSAYS AND LETTERS. 293 

ideas so planted in Massachusetts were, according to your account, 
the freedom and equality of all races, and the right and duty of every 
man to exercise his j^rivate judgment in politics as well as religion. 
On the other hand, you set forth as irreconcilably hostile the doctrine 
of Virginia, " that capital should own labor, that the negro had no 
rights of manhood, and that the white man might buy, own, and sell 
him and his offspring forever." Following these assertions with 
others, and linking the present with the long past, you employ the 
devices of your rhetoric to glorify the modern Abolitionist and to 
throw foul scorn, not merely on the Southern people, but on the whole 
Democracy of the country. 

This looks learned and philosophical, and it gives your speech a 
dignity seemingly above the reach of the ordinary demagogue. Happy 
is he who knows the causes of things ; felicitous is the partisan mem- 
ber of Congress whose stump-speech goes up the river of time to the first 
fountains of good and evil. But your contrast of historical facts is 
open to one objection, which I give you in a form as simple as possi- 
ble when I say that it is wholly destitute of truth. This, of course, 
implies no imputation on your good faith. Your high character in 
the Church, as well as the State, forbids the belief that you would be 
guilty of willful misrepresentation. 

The men of Massachusetts, so far from planting the right of pri- 
vate judgment, extirpated and utterly extinguished it, by means so 
cruel that no man of common humanity can think of them even now 
without disgust and indignation. I am surprised to find you igno- 
rant of this. Did you never hear of the frightful persecutions they 
carried on systematically against Baptists, and Quakers, and Catholics ? 
— how they fined, imprisoned, lashed, mutilated, enslaved, and banished 
everybody that claimed the right of free thought ? — how they stripped 
the most virtuous and inoffensive women, and publicly whipped them 
on their naked backs, only for expressing tlieir conscientious convic- 
tions ? Have you never, in all your reading, met with the story of 
Eoger Williams ? For merely suggesting to the public authorities of 
tlie colony that no person ought to be punished on account of his 
honest opinions, he was driven into the woods and pursued ever after- 
ward with a ferocity that put his own life and that of his friends in 
constant danger. In fact, the cruelty of their laws against the free- 
dom of conscience, and the unfeeling rigor with which they were exe- 
cuted, made Massachusetts odious throughout the world. 

These great crimes of the Pilgrim Fathers ought not to be cast 
up to their children ; for some of their descendants (I hope a good 
majority) are high-principled and honest men, sincerely attached to 
the liberal institutions planted in the more southern latitudes of the 
continent. But if you are right in your assertion that the Abolition- 
ists derive their principles from the ideas entertained and planted at 



294 POLITICAL ESSAYS AND LETTERS. 

Plymouth, that may account for the coarse and brutal tyranny with 
which your party has, in recent times, trampled upon the rights of 
free thought and free speech. 

Nor arc you more accurate in your declaration that the old Yankees 
planted the doctrine of freedom and etiuality, or opposed the domina- 
tion of one race over another. Messrs. Palfrey and Sumner have said 
something to the effect that slavery never existed in Massachusetts, 
and you may have been misled by them. But eitlier they were wholly 
ignorant of the subject, or else they spoke with that loose and lavish 
un veracity which is a common fault among men of their political sect. 
The Plymouth colony and the province of Massachusetts Bay Avcrc 
pro-slavery to the backbone. If you doubt this, I refer you to Moore's 
" History of Slavery in Massachusetts," Avhere the evidence (consist- 
ing chiefly of records and documents perfectly authenticated) is pro- 
duced and collated with a fullness and fairness which can not be ques- 
tioned. The Plymouth immigrants planted precisely the doctrine 
which you ascribe to the Jamestown colonists — that is to say, they 
held " that the negro had no rights of manhood ; that the white man 
might buy, own, and sell him and his offspring forever." Practically 
and theoretically, they maintained that human slavery, in its most un- 
mitigated form, was a perfectly just, proper, and desirable institution, 
entirely consistent with Christianity as they understood it, and founded 
on principles of universal juris]n-udencc. They insisted upon it as an 
established and settled rule of the law of nations that when one govern- 
ment or community or politicaP organization made war upon its own 
subjects, or the subjects of another, and vanquished them, the people 
of the beaten party had no rights to which the right of the conquerors 
was not paramount. Whenever it was demonstrated, by actual experi- 
ment, that any pcoi)le were too Avcak to defend their homes and fami- 
lies against an invader who visited them with fire and sword, they 
might lawfully be stripi)cd of their property, and they themselves, 
their wives, and their children might justly be held as slaves or sold 
into perpetual bondage. That Avas the idea they planted in their own 
soil, proi)agated among their contemporaries, and transmitted to the 
Abolition party of the present day. You have preached and practiced 
it in all your dealings with the South. This absolute domination is 
what you mean, if you mean anything, when you talk about the 
" precious results of the war." If the doctrine thus planted by the 
original settlers in Massachusetts be true, and if the ^' precious fniUn " 
of it, which you are gathering with so much industry, be legitimate, 
it is a perfect justification of all the slavery that ever existed on this 
continent. Your great exemplars, from whom you acknowledge that 
you have derived your ideas of freedom, certainly thought, or professed 
to think, so, and they carried it out to its logical consequences. When 
an African potentate chose to fight with and subdue a weak tribe, 



POLITICAL ESSAYS AND LETTERS. 295 

inside or out of his own dominions, lie sold tlic prisoners whom he did 
not think proper to kill, and the men of Massachusetts bought tlicm 
without a question of his title. They kei)t them and worked them to 
death, or sold them again, as their interest i)rompted ; for they held 
that tlie right of domination, resulting from the application of brute 
force, was good in the hands of all subsequent i)urchasors, however 
remote from the original conqumtor. 

They executed this theory to its fullest extent in their own wars 
with the Indians. Without cause or provocation, and without notice 
or warning, they fell upon the Pequods, massacred many of them, and 
made slaves of the survivors, without distinction of age or sex. About 
seven hundred, including many women and children, were sent to the 
West Indies, and there sold on public account, the proceeds being i)ut 
into the colonial treasury. Eight score of these unfortunate i)eop]c 
escaped from the butchery by fliglit, and afterward agreed to give 
themselves up on a solemn promise of the authorities that they should 
neither be put to death nor enslaved. The promise was broken with 
as little remorse as a modern Abolitionist would violate his oath to 
support the Constitution. The *' precious results of the war" were 
not to be lost by an honest observance of their pledged faith, and the 
victims of this infamous treachery were all of them shii)ped to the 
IJarbadoes, and sold or ** swapped for Blackamoors." This practice 
of enslaving their captives was uniform, covered all cases, and included 
women and children as well as fighting men. When death put King 
Philip beyond their reach, they sent his wife and child with the rest 
to be sold into slavery. The Indians made bad slaves. They were 
hard to tame, they escaped to the forest, and had to be hunted down, 
brought back and branded. They never ceased to be sullen and dis- 
obedient. The Africans always, on the contrary, "accepted the situ- 
ation," were easily domesticated, and bore the yoke without murmur- 
ing. For that reason it became a settled rule of public and private 
economy in Massachusetts to exchange their worthless Indians for 
valuable negroes, cheating their West India customers in every trade. 
Perhaps it was here that your party got the (lerm of its honesty as well 
as its humanity. Tliey made war for no other object than to sup])ly 
themselves with subjects for this fraudulent traffic. In 1643 Emanuel 
Downing, the foremost lawyer in the colony, and a leader of command- 
ing influence, as well as high connections, made a written argument 
in favor of a war with the Narragan setts. He did not pretend that 
any wrong had been done ; but he had a pious dread that Massachu- 
setts would be held responsible for the false religion of the Narragan- 
setts. *' I doubt," says he, " if it be not synne in us, having power 
in our hands, to suffer them to maynteyne the worship of the devil 
which their powwowes often doe." This tenderness of conscience for 
the sins of other people is very characteristic of the party which got 



296 POLITICAL ESSAYS AND LETTERS. 

tlie " germ of its ideas " from that source. But go a little further, and 
you will see with pleasure how exactly you have copied their doctrines. 
This is the way Mr. Downing api)lies the motive power : " If," says 
he, "upon a just war, the Lord should deliver them into our hand, 
wee might easily have men, women, and cliildren enough to exchange 
for Moors [negroes], which will be more gaynefull pilladge for us than 
wee conceive ; for I do not see how wee can thrive untill we get into a 
stock of slaves sufficient to do all our business." This (except the 
spelling) might come from an abolition caucus to-day. You will find 
Downing's letter in Moore, page 10. 

They did get most of their Indians off, and supplied themselves 
with negroes in their place. The shameless inhumanity with which 
the blacks were used made slavery in Massachusetts "the sum of all 
villainy." In the letter of Downing, already referred to, he says : 
" You know very well wee shall mayntayne twenty Moores cheaper than 
one Englishe servant." Think of reducing a West India negro in that 
intensely cold climate to the one twentieth part of the food and cloth- 
ing which a white menial was in the habit of gettipg. They must 
have been frozen and starved to death in great numbers. When that 
happened it Avas but the loss of an animal. The harboring of a slave 
woman was, in 1G46, pronounced by the highest authority to be the 
same injury as the unlawful detention of a heast. In 1716 Sewell, the 
Chief-Justice of the colony, said that negroes were rated with horses 
and hogs. Dr. Belknap tells us that afterward, when the stock en- 
larged and the market became dull, young negroes and mulattoes were 
sometimes given away like puppies. This is the kind of freedom, this 
the equality of the races, which you learned from the ancient colo- 
nists. 

But they taught you more than that. Their precept and example 
established the slavery of white persons as well as Indians and negroes. 
As their remorseless tyranny spared no age and no sex, so it made no 
distinction of color. Besides the cargoes of white heretics which were 
captured and shipped to them by their brethren in England, they took 
special delight in fastening their yoke on all who were suspected of 
heterodoxy. One instance is worthy of special attention. Lawrence 
Southwick and his wife were Quakers, and accused at the same time 
with many others of attending Quaker meetings, or "syding with 
Quakers "and "absenting themselves from the publick ordinances." 
The Southwicks had previously suffered so much in their persons and 
estates from this kind of persecution, that they could no longer work 
or pay any more fines, and, therefore, the general court, by solemn 
resolution, ordered them to be banished on pain of death. Banish- 
ment, you will not fail to notice, was, in itself, equivalent to a linger- 
ing death, if the parties were poor and feeble ; for it meant merely 
driving them into the wilderness to starve with hunger and cold. 



POLITICAL ESSAYS AND LETTERS. 297 

Southwick and his wife went out and died very soon. But that is not 
all. This unfortunate pair had two children, a boy and a girl (Daniel 
and Provided), who, having healthy constitutions, would bring a good 
price in the slave-market. These children were taken from the par- 
ents and ordered to be sold in the West Indies. It happened, how- 
ever, that there was not a shipmaster in any port of the colony who 
would consent to become the agent of their exportation and sale. Tlie 
authorities, being thus balked in their views of the main chance, were 
fain to be satisfied in another way ; they ordered the girl to be whipped ; 
she was lashed accordingly, in company with several other Quaker 
ladies, and then committed to prison, to be further proceeded with. 
History loses sight of her there. No record shows whether they killed 
her or not. 

This is one case out of a great many. It is very interesting and 
instructive when taken in connection with your speech ; for it shows 
the "germ of the idea" which your party acted on when it kidnapped 
and imprisoned men and women by the thousands for believing in 
American liberty as guaranteed by the Constitution. The Quakers 
and Baptists had no printed organs in that day through which their 
private Judgment could be expressed ; else you would no doubt have 
cases directly in point to justify your forcible suppression of two hun- 
dred and fifty newspapers. 

Enmity to the right of private judgment comes down to the party 
of Plymouth ideas by consistent and regular succession. It is woven 
like a dirty stripe into the whole warp and woof of their history. As 
soon as tlicy got possession of the Federal Government, under John 
Adams, they began to use it as an engine for the suppression of free 
thought. Their alien law gave the President power to banish or im- 
prison without trial any foreigner whose opinions might be obnoxious 
to his supporters. Their sedition law put every Democratic speaker 
and writer under the heel of the Administration. Their standing 
army was used, as it now is, to crush out their jwlitical opponents. If 
you come into Eastern Pennsylvania, and particularly into the good 
county of Berks, you will learn that the people there still think with 
indignation of that old reign of terror when Federal dragoons kid- 
napped, insulted, and beat their fathers, chopped down their ''liberty- 
poles," broke to pieces the press of the " Beading Eagle," and whipped 
its venerated editor in the market-house. The same sjiirit broke out 
again in the burning of nunneries and churches under Maria Monk, 
and under John Brown the whole country swarmed with spies and 
kidnappers. When you abandoned the harlot and rallied to the stand- 
ard of the thief, you changed your leader without changing your prin- 
ciples. 

The slave code planted in Massachusetts was the earliest in America 
and the most cruel in all its provisions. It was pertinaciously adhered 



298 POLITICAL ESSAYS AND LETTERS. 

to for generations, and never repented of, or formally repealed. It 
was gradually abandoned, not because it was wrong, but solely because 
it was found, after long experiment, to be unprofitable. Their plan 
of keeping twenty negroes as cheaply as one white servant did not work 
well ; for in that climate a negro thus used would infallibly die before 
his labor paid what he cost. They sold their stock whenever they 
could, but emancipation was forbidden by law, unless the owner gave 
security to maintain the slave and prevent him from becoming a pub- 
lic charge. To evade this law, those who had old or infirm negroes 
encouraged them to bring suits for their freedom, and then by sham 
demurrers, or other collusive arrangements, got judgments against 
themselves that the negroes were free, and always had been. Females 
likely to increase the stock were advertised to be sold, ''for that fault 
alone." Young ones, because they were not worth raising, were given 
away like puppies of a superabundant litter. In this way domestic 
slavery by degrees got loose in practice, simply because it would not 
pay ; but the principle, on which one man may own another whom he 
subdues by superior strength or cunning, was never abandoned, re- 
pudiated, or denied. That principle was cherished, preserved, and 
transmitted to you, their imitative and loving disciples, and you have 
api)lied it wherever you could as tyrannically as they did. 

You say that '' war without an idea is simjile brutality." I sub- 
mit to your judgment, as a Christian man, whether war is redeemed 
of its brutality by such ideas as you and your political associates en- 
tertain of its purposes, objects, and consequences. In all your acts 
and measures, and by all your speeches and discussions, you express the 
idea that the logic of blows proves everything you choose to assert ; 
that a successful invasion of one people by another has the effect of 
destroying all natural right to, and all legal guarantees for, the life, 
liberty, and property of the people so invaded and conquered ; that 
after a trial by battle the victor may enter up and execute what judg- 
ment he pleases against his adversary ; that the crime which a Aveak 
community are guilty of, when they attempt to defend their lives, 
their ]iropcrty, and their families against invaders who come ujion them 
to kill, destroy, and subjugate them, is so unpardonable that the whole 
body of the offenders, taken collectively, and all individuals who par- 
take even passively of the sin, may justly be devoted to death or such 
other punishment, by wholesale or retail, as the strong power shall see 
proper to inflict ; that the conqueror, after the war is over, may insist 
that the helpless and unarmed people, whom he has prostrated, shall 
assist him by not merely accepting^ but *' adopting " (I use your own 
word) the measures intended to degrade and rob them, and thus make 
himself master of their souls as well as their bodies. All rights of 
men are resolved by this theory into the mights of men. 

I aver that this doctrine, in all its length and breadth, is false and 



POLITICAL ESSAYS AND LETTERS. 299 

pernicious. It is the foundation on which all slavery rests, and the 
excuse for all forms of tyranny. It has no suj^port in any sound, rule 
of public law, and has never been acknowledged by wise or virtuous 
governments in any age since the advent of Christ. You can find no 
authority for it, except in the examples of men whose names are given 
over to universal execration, Mohammed asserted it when he forced 
his religion upon the subjugated East, when churches were violently 
converted into mosques, and the emblem of Christianity was trampled 
under foot, to be replaced by tlie badge of the impostor. On the same 
principle Poland was partitioned, and Ireland plundered a dozen times. 
The King of Dahomey acted upon it when he sold, his captives, and 
the men of Massachusetts indorsed it when they took them in ex- 
change for captives of their own. You and your confreres adopted it 
as a part of your political creed when, after the Southern i)eople were 
thoroughly subdued, you denied them all the rights of freemen, tore 
up their society, abrogated all laws which could protect them in per- 
son or property, broke their local governments in pieces, and put them 
under the domination of notorious thieves, whom you forced them to 
accept as their absolute masters. 

These results of the war are no doubt very precious. The right to 
traffic in the flesh of Indians and negroes was precious to the Yankees 
and tlie King of Dahomey. That was the fruit of their wars. But 
was it in either case legitimate ? Your great reverence for the found- 
ers of your political school in Massachusetts, to say nothing of your 
respect for the authority of the African princes, or your faith in the 
Koran, will probably impel you to stand up in favor of the " ideas " 
which you have learned from them. But I think I can maintain the 
Christian law of liberty in opposition to all your Mussulman notions ; 
for God is great, and Mohammed is not his prophet. 

It would be very unjust to deny that a great many men, from the 
earliest period of our liistory, were sincerely opposed to African slavery, 
from motives of religion, benevolence, and humanity. This sentiment 
was strong in the South, as well as the North, and by none was it 
exi^ressed with more fervor than by JefEerson himself, the great apostle 
of Democracy. But this concession can hardly be made to the politi- 
cal abolitionists. As an almost universal rule, the leaders of that 
sect were ribald infidels, and their conventicles teemed Avith the most 
shocking blasphemy. They were, by their own avowals, the most 
cruel barbarians of any age. Servile insurrection and a general butch- 
ery of the Southern people were a part of their programme from the 
beginning. The leaders to whom they gave their highest admiration 
were the men whose feet were the swiftest in running to shed inno- 
cent blood. Seward won their affections in his early manhood by pro- 
posing measures from which civil war would be sure to come, and in 
which he promised that negroes should be incited to " rise in blackest 
20 



300 POLITICAL ESSAYS AND LETTERS. 

insurrection." They applauded Jolin Brown to the echo for a series 
of the basest murders on record. They did not conceal their hostil- 
ity to the Federal and State goYernments, nor deny their enmity to 
all laws which protected the liberties of white men. The Constitution 
stood in their way, and they cursed it bitterly ; the Bible was quoted 
against them, and they reviled God the Almighty himself. I know 
that the mind of man, like his body, is fearfully and wonderfully made ; 
I understand all the difficulty of analyzing human passions ; and I ad- 
mit that we should not judge harshly of motives : but how these 
heartless oppressors of their own race could have any care for the 
freedom of the negro passes my comprehension. Unless you can ex- 
plain it otherwise, the judgment of history must inevitably be against 
the sincerity of their anti-slavery professions. In the present aspect 
of the case, it seems impossible to believe that love of the negro was 
not assumed as a mere excuse for enslaving the white race, just as their 
ancestors put on the pretense of piety to gratify their appetite for the 
property and blood of better people than themselves. You must posi- 
tively reconsider this subject before you undertake again to present 
the abolitionists to the world in the respectable character of fanatics. 
I think you will find that the crew of the Mayflower brought over and 
planted no "germ of an idea" which has flourished with more vigor 
than their canting hypocrisy. 

Here let me say again that the vices and wickedness of the Ply- 
mouth colonists are not to be visited on the heads of their children, 
according to the flesh. Among them, in every part of the country, 
are great statesmen, brave soldiers, true servants of the Church, and 
virtuous, patriotic Democrats, who are no more responsible for the 
crimes of their ancestors than a peaceable Scotchman is for the raids 
and robberies which in past generations were committed by his clan 
upon the English border. But you acknowledge that you get your 
political ideas from them ; you boast that your party has no doctrines 
of public law, and no notions of public duty, which were not planted 
at Plymouth. Therefore it is not only proper, but necessary, to show 
what those doctrines and ideas were. 

I pass now to a later period. You say that there were two radi- 
cally different theories about the nature of our government — "the 
North believing and holding that v/e were a nation, the South insist- 
ing that we were only a confederation of sovereign States." It is not 
true that any such theoretical conflict ever existed between the sec- 
tions. That the Articles of Confederation first, and the Constitution 
afterward, united the States together for certain purposes therein 
enumerated, and thus made us a nation among nations, was never de- 
nied that I know of by any party. But this national character was 
giTcn to the General Government by sovereign States who confeder- 
ated together for that purpose. They bestowed certain powers on the 



POLITICAL ESSAYS AND LETTERS. 301 

new political corporation then created, and called it the United States 
of America, and they expressly reserved to themselves all the sover- 
eign rights not granted in the charter. Democratic statesmen had no 
theory about it. They saw tlteir duty written down in the funda- 
mental law ; they swore to perform it, and they kept their oaths. 
They executed the powers of the General Government in their whole 
constitutional vigor — for that, as Mr. Jefferson said, was " the sheet- 
anchor of our peace at home and our safety abroad " — and they 
carefully guarded the rights of the States as the only security we 
could have for a just administration of our domestic affairs. This 
was universally assented to as right and true. No counter theory was 
set up. Difference of construction there might be, but all admitted 
that when the line of power was accurately drawn between the Federal 
Government and State sovereignty, the rights on one side were as sa- 
cred as those on the othei. But within two or three years last past the 
low demagogues of your party have got to putting in their platforms 
the assertion that this is a nation and not a confederation. What do 
they mean ? What do you mean when you indorse and reproduce it ? 
Do you deny that the States were sovereign before they united ? Do 
jou affirm that their sovereignty was wholly merged in the Federal 
Government when they assented to the Constitution ? Is the tentli 
amendment a mere delusion ? Do you mean to assert that the States 
have not now, and never had, any rights at all except what are conced- 
ed to them by the mercy of the "nation " ? No doubt this new article 
was inserted in the creed of the abolitionists because they supposed it 
would give a sort of plausibility to their violent intervention with tho 
internal affairs of the States. But it is so false, so shallow, and so des- 
titute of all respectable authority, that it imposes upon nobody. 

As a part of this conflict of theories, and resulting from it, you 
describe the South as *' insisting that each State had a right, at its 
own discretion, to break the Union, and constantly threatening seces- 
sion, whei'e the full rights of slavery were not acknowledged." In 
fact and in truth, secession, like slavery, was first planted in New Eng- 
land. There it grew and flourished, and spread its branches far over 
the land, long before it was thought of in the South, and long before 
*' the full rights of slavery" were called in question by anybody. The 
anti-democrats of that region, in former as well as in later times, 
totally misunderstood the purposes for which this government was 
made. 

They regarded it as a mere commercial machine, by which they 
could make much "gaynefull pilladge," if allowed to run it their own 
way. When they were disappointed in this by certain perfectly just 
and constitutional regulations of their trade, which the common de- 
fense and general welfare made necessary, they immediately fell to 
plotting the dismemberment of the Union. Before 1807 they organ- 



302 POLITICAL ESSA YS AND LETTERS. 

ized a conspiracy with the British authorities in Canada for the erec- 
tion of New England into a separate republic under British protection. 
(See Carey's " Olive Branch" and the Henry correspondence.) Not 
long afterward Josiah Quincy, whose fidelity to the party which elected 
him was never doubted, formally announced in Congress the intention 
of his State to leave the Union, "peaceably if she could, forcibly if 
she must." Their hatred of the Union deepened, and their determi- 
nation to break it up grew fiercer, as the resolution of the Democrats 
to maintain the independence of the country became stronger. When 
the war of 1813 began, they were virtually out of the Union, and 
remained out during the whole of that desperate struggle, not only 
refusing all assistance to carry it on, but helping the enemy in every 
possible way. It was while England had her tightest grasp on the 
throat of the nation, that the Hartford convention was called to dis- 
member it ; and this, Mr. Jefferson says, they would have accom- 
plished but for the battle of New Orleans and the Peace of Ghent. 
John Quincy Adams in 1839, and Abraham Lincoln in 1847, made 
elaborate arguments in favor of the legal right of a State to go out. 
The later abolitionists did not attempt to conceal their rancorous 
hostility to the Union. "No union with slave-holders " was one of 
their watch-words, and, down to the opening of the war, its destruc- 
tion was the avowed object of their machinations. 

There is one conclusive proof of your enmity to the Union, and 
that is your unwavering opposition to the Constitution which held the 
States together. You know as well as I do how absurd it is to suppose 
that any man or party can support the Union, and at the same time 
trample on the Constitution ; and you certainly are not ignorant that 
you and your predecessors, from the earliest times, have been anti- 
constitutional in all your proclivities. Contemptuous disregard of con- 
stitutional obligations is not now the mere germ of a doctrine ; it is a 
part of your settled creed. Before the war and since, you have trod- 
den under foot every provision contained in the great charter of our 
liberties. I do not speak at random. I challenge you to designate a 
single constitutional right of the States, or of individuals, which you 
have not at some time, or in some way, deliberately violated. 

This contempt for the Constitution, this practical denial that an 
oath to support it is sacred, implies a disregard of all laws, human 
and divine, and, when adopted, it left nothing to guide you except the 
propensities, evil or good, of your natural hearts. Many of you (and 
notably you yourself) contracted no individual guilt, because you were 
too proud for petty larceny, too benevolent for large-handed robbery^ 
and too full of kindness to break wantonly into the tabernacle of hu- 
man life. But generally the moral principles of the ultra-abolitionists 
(if they ever had any) became so wholly perverted, that they saw noth- 
ing wrong in the worst offenses that could be committed against their 



POLITICAL ESSAYS AND LETTERS. 



303 



political opponents. In their eyes, theft and murder not only lost 
their felonious character, but became meritorious, if the victims lived 
south of Mason and Dixon's line. When John Brown stole horses in 
the peace of God and the State of Missouri, he was taking lawful 
booty ; when he sneaked into a quiet Virginia village on a Sunday 
night and assassinated defenseless citizens, he was a hero ; and when 
he died a felon's death on the scaffold, to which he was justly con- 
demned, he became a martyr. 

You persist in misunderstanding the ante-bellum attitude of the 
:N'orthern Democracy. We stood steadfastly by the Union against all 
attempts of the New England party to break it up by secession. Wo 
sustained the Constitution against the ferocious assaults of the aboli- 
tionists ; we labored earnestly to save republican institutions from the 
destruction with which they were threatened by you ; and as long as 
the Southern people acted with us, we gratefully accepted their aid in 
the good work. 

Your averment that the Democratic party desired the aggrandize- 
ment of slavery, and "yielded their consciences " on that subject to 
the South, is grossly unjust, if you mean to charge them Avith any- 
thing more than a willingness to protect the Southern as well as the 
Northern and Middle States in the exercise of their constitutional 
rights. We had disposed of slavery within our own jurisdiction ac- 
cording to our sense of sound policy and justice. But we had made 
an express compact with the other States to leave the entire control of 
their domestic affairs to themselves. We kept our covenant, simply 
because it would have been gross dishonesty to break it. The aboli- 
tionists took a different view, and refused to keep faith. They swore 
as solemnly as we did to observe the terms of the bargain ; but accord- 
ing to their code it was a sin not to violate it. The fact is true that 
we did not think it right to cut the throats, or shoot, or strangle the 
men or women of the South for believing in negro slavery ; but that 
is no justification of your assertion that we yielded our consciences to 
them. 

Again : You charge us (the Northern Democracy) with having 
given bad advice to the Southern people. This consisted, you say, 
in assuring them that, if they seceded, we would take their part against 
any attempt to force them back again into the Union. This is a gross 
error, and you will see it when I recall your attention to the facts. In 
all our exhortations to Southern men against secession we were met 
by the expression of their fear that the abolitionists intended, in any 
event, to invade and slaughter them. Some reason for this apprehen- 
sion was given by the fierce threats of your leading men, and espe- 
cially by your almost universal admiration of Brown for his raid into 
Virginia. Certain Democrats (and very good men too) did then de- 
clare that a lawless expedition intended for purposes of mere murder 



304 POLITICAL ESSAYS AND LETTERS. 

and pillage could not and should not be started in the North without 
such oj)position as would effectually stop it. But this was before 
secession, and it was intended to prevent that movement, not to 
encourage it. 

You can not, with any show of justice, deny that devotion to the 
Union was one of the strongest feelings in the heart of the Northern 
Democracy. We had always deprecated a sej)aration from the Southern 
States with so much earnestness that one of the opprobrious epithets 
you bestowed on us was that of " Union savers." This was not a mere 
sentiment of admiration or gratitude to the great Southern men who 
had led us through the perils of the Revolution, settled our institutions, 
and given our country its high place in the estimation of the world. 
We felt all this ! but we felt much more. The preservation of the 
Union was to us an absolute necessity. It was indispensable to the 
security of our lives, our personal liberty, and our plainest rights of 
property. How true this was at all times, and especially in 1860, you 
will see if you reflect a moment on our situation at that time. 

The abolitionists were coming into power. I need not say by what 
combination of imposture and accident they got it. All the Northern 
States as well as the Federal Government fell into their hands. No 
doubt their dislike of Southern people was very great ; but Northern 
Democrats were objects of their special malignity. Long before that 
time, and ever since, this sentiment has been expressed in words and 
acts too plain to be misunderstood. You show how strong it is in 
your own heart when you tell Southern men (and you do tell them so 
in this very speech) that you honor them ten thousand times more than 
Democrats of the North. Remember, in addition to this, that the 
leading abolitionists acknowledged no law which might stand in the 
way of their interests or their passions. Against anybody else the Con- 
stitution of the country would have been a protection. But they disre- 
garded its limitations, and had no scruples about swearing to support 
it with a predetermination to violate it. We had been well warned 
by all the men best entitled to our confidence — ^particularly and elo- 
quently warned by Mr. Clay and Mr. Webster — that if ever the abo- 
litionists got a hold upon the organized physical force of the country, 
they would govern without law, scoff at the authority of the courts, 
and throw down all the defenses of civil liberty. 

But if the South had not seceded, we might have made a successful 
defense of our Constitution though the powers of the Government 
were in the hands of its enemies. With the aid of the Southern people, 
if they had been true to their duty, we could have organized an oppo- 
sition so formidable in its moral and political power that you would 
scarcely have dared to assault us. No wonder that we were ''Union 
savers " ; for to us the Union meant personal liberty, free thought, an 
independent press, habeas corpus, trial by jury, the impartial admin- 



POLITICAL ESSAYS AND LETTERS. 305 

istration of justice — all those great legal institutions which our fore- 
fathers had shed so much of their blood to build up. 

The South deserted us at the crisis of our fate, and left us in our 
weakness to the mercy of the most unprincipled tyrants that ever be- 
trayed a public trust. Secession was not mere folly and madness ; it 
was something much worse. We could not but feel that we were 
deeply wronged. There was no remedy for the dire calamities with 
which we were threatened except in bringing the seceded States back 
to their places in the Union. Our convictions of legal duty, our ex- 
asperated sense of injury, and a proper care for our best interests, all 
impelled us to join the new Administration in the use of such force 
as might be found necessary to execute the laws in every part of the 
country. 

But the abolitionists wanted a war for the destruction of the 
Union, for the overthrow of the Constitution, for the subversion of 
free government, and for the subjugation of the whole country to that 
*' higher law " which imposes no restraint upon the rapacity and malice 
of the ruling power. To such a war the national conscience was op- 
posed. The soul of every respectable officer in the army and navy 
revolted at it, and every virtuous man in private life felt it to be an 
unspeakable outrage. To those who doubted before, the disaster at 
Bull Eun made it plain that the war could not be successfully carried 
on unless it was put upon principles consistent with the usages of 
Christendom and the safety of our own institutions. Therefore it was 
that, on the 22d of July, 1861, Congress, with almost perfect unanim- 
ity, passed a resolution through both Houses, declaring, in the most 
explicit words, that the war should be conducted to preserve the Con- 
stitution, and not to revolutionize it. I give you here the words of 
the resolution itself from the "■ Congressional Globe," page 223 : 

^'Resolved: That the present deplorable civil war has been forced 
upon the country by the disunionists of the Southern States, now in 
arms against the constitutional government, and in arms around the 
capital ; that, in this national emergency, Congress, banishing all feel- 
ing of mere passion or resentment, will recollect only its duty to the 
whole country ; that this war is not waged on their part in any spirit 
of oppression, or for any purpose of conquest or subjugation or pur- 
pose of overthrowing or interfering with the rights or established in- 
stitutions of those States, but to defend and maintain the supremacif 
of the Constitution, and to preserve the Union with all the dignity, 
equality, and rights of the several States unimpaired ; and that as 
soon as these objects are accomplished the war ought to cease." 

Confiding in this assurance, Democrats from every Northern State 
rushed to the front by the hundred thousand ; the border States of 
the South gave in their formal adhesion to the Government ; and our 
great military leaders drew their swords with alacrity in support of 



306 POLITICAL ESSAYS AND LETTERS. 

the free institutions to which they had shown their fidelity so often 
before. 

With what base perfidy this solemn pledge was broken I need not 
tell you ; for this speech shows that you know it well. You expressly 
declare that so far from sustaining the Government, you revolutionized 
it. Instead of a war for the Union, you claim that it put the States 
out of the Union, and you had a right to keep them out as long as 
you pleased, or admit them to their places on any terms, howerer de- 
grading, which you choose to dictate. Instead of restoring the suprem- 
acy of the Constitution, all your politicians held, and, so far as I know 
from their public declarations, still hold, that the victory of the Fed- 
eral forces abolished the Constitution, not only in the South, but in 
the North, and therefore they were not bound to observe its limita- 
tions, either in their legislative, judicial, or executive measures. In- 
stead of bringing back the States with their rights unimpaired, ac- 
cording to your promise, you crippled, enslaved, subjugated, and 
disfranchised them. Instead of using the war power for the just and 
lawful purposes to which you were pledged, you converted it into a 
black Republican job to put the rights of all the people permanently 
under the feet of an unprincipled party. 

I submit this part of the case to your consideration. I ask you to 
say whether you can find in the whole history of the human race 
anotlier instance of similar perfidy on a scale so large. The baseness 
of the Massachusetts authorities in selling the surrendered Pequods 
into slavery, after a solemn promise to the contrary, was but the "germ 
of an idea," on which you acted in the fullness of its growth. Their 
act was, in its nature and character, nearly as bad as it could be, but 
only eight score of helpless people suffered by it ; the victims of your 
treachery are counted by millions. 

The offenses which you are now engaged in committing upon the 
public treasury are the natural sequence of your crimes against popular 
liberty. Universal experience proves that power usurped will always 
be dishonestly used. Seeing that the abolitionists were led by men 
whom no oath could hold to the Constitution, and whom no pledge 
could bind to -m observance of its principles, we had no right to expect 
a decent regard for justice in their administration of the national 
finances. I do not mean that the masses of your party were, or are 
now, destitute of common integrity. But that was overruled by the 
political doctrines of their leaders. Having once set aside the estab- 
lished law of the land, they had no standard by which they could 
measure the moral conduct of themselves or others, and they became 
incapable of seeing the difference between right and wrong in public 
affairs. The "higher law" threw the reins loose on the neck of all 
evil passions. It not only abrogated the Constitution, but the Deca- 
logue as Avell, and the eighth commandment was nullified with the rest. 



POLITICAL ESSAYS AND LETTERS. 307 

You have consequently made ours the corruptest Government on 
this side of Constantinople. Perhaps you will say this is a mere gen- 
eral assertion. But I am ready to maintain the truth of it against all 
opposers. You may take the rottenest monarchy in Europe, go over 
its history for a Imndred years, and produce the worst act you can 
find of fraudulent spoliation upon its people ; and if I do not show 
something worse committed here under the auspices of the party now 
in power I will give up the case. 

I am speaking of the Government — of the officials who rule us for 
their pleasure, and plunder us for their personal profit — and it is no 
answer to quote Mr. Lord's speech before the Senate on the trial of 
Belknap. His eulogy was on the virtue and intelligence of the ipeople, 
and he argued from that the duty of their servants to behave with 
integrity. He certainly did not mean to whitewash the administra- 
tion. If he had meant to do so he could not have succeeded, for there 
was not wash enough in his bucket to go over the twenty thousandth 
part of the job. 

While you were hunting for certificates of character among the 
speeches of the impeachment managers, why did you overlook that of 
Mr. Hoar ? He said in effect (for I cite him from memory) that the 
one production in which our country excels all others in the world is 
the corruption of its Government. There was the testimony of a can- 
did witness belonging to your own party, who knew whereof he affirmed 
and spoke directly to the point. 

But it is useless to cite the evidence of individuals upon great 
public facts that are felt and seen and known of all men. Nothing 
ever was more notorious than the general disregard of all sound prin- 
ciple by this administration. No people on earth are now suffering 
so much from extravagant taxation, and nowhere does so small a por- 
tion of the taxes go to legitimate public purposes, or so much to the 
rulers themselves and the rings they choose to favor. Industry is 
crushed as it never was before. Labor no longer works for itself, since 
all and more than all of its surplus profits are exacted and consumed 
by the hangers-on of the Government. Now, although we call our- 
selves freemen or freedmen, we are to all intents and purposes slaves, 
so long as you continue to make us hand over to you the earnings of 
our labor ; for the essence of slavery consists in compelling one man, 
or class of men, to work for another without equivalent. We are de- 
termined to relieve ourselves from this intolerable bondage, as far as 
we can legally and peaceably, and, if you do not help us, you must at 
least cease to mock us by pretending to be an anti-slavery man upon 
principle. 

You tell us that the Republican party '' will punish its own ras- 
cals." The newspaper report of your speech says that this was greeted 
with laughter from the Republican side of the House. Certainly it 



308 POLITICAL ESSAYS AND LETTERS. 

sounds like the broadest of jokes. If you meant it in earnest, please 
to say what you found this claim of impartial justice upon. You will 
hardly prove it by showing that Bristow and Wilson succeeded, with 
much tribulation, in convicting certain manufacturers of crooked 
whisky, and thereby got themselves turned out of office. It is vain 
to deny that there is, and has been, a general systemoi dishonesty j)er- 
vading all ranks of the civil service, which, so far from being pun- 
ished, is protected, encouraged, and rewarded by the highest autliori- 
ties. You have set your faces like a flint against all investigations 
tending to expose rascality. Proof of that, if proof were wanting, 
would be found in your own denunciation of the present Congress for 
pushing its inquiries. into those regions where venality and corruption 
might otherwise have dwelt in safety. 

In all your Southern measures you have shown a positive abhor- 
rence of honest government. You forced into all places of power, 
men whose characters were notoriously bad, and maintained them 
while they perpetrated the most shameless robberies. You resisted 
every effort of the ojipressed people to throw them off, and, when those 
efforts were successful in some of the States, you mourned the fall of 
the felons with sincere lamentation. Just look at the crew of godless 
wretches by whom Louisiana has been almost desolated ! In the face 
of a constitutional interdict, your administration at Washington re- 
peatedly interfered to shield them from justice, and to uphold them 
in the possession of power to which they had no manner of legal claim. 
At this moment they are preying upon the prostrate people of the 
State, under the protection of Federal bayonets. Is that what you 
call punishing your own rascals ? 

You may answer that the white people of Louisiana, being con- 
quered, are rightfully enslaved, according to the principles planted at 
Plymouth, and therefore it is not for the like of them to invoke the 
protection of law and justi<;e. I will therefore call your attention to 
another case to which the Dahomeian rule does not apply, and in 
which the failure of the Republican party to punish its own rascals 
has been equally signal ; I mean the frauds of the Union Pacific Eail- 
road Company and the Credit Mobilier. 

You will pardon me, I am sure, for referring to this affair ; you 
are the last man upon whom I would make a personal point, and I 
could not do it here if I would try ; for the conviction I have often 
expressed remains unchanged, that your integrity was not stained by 
such connection as you had with that business. But we both know 
that it was the most gigantic fraud that the history of modern times 
discloses. The magnitude of the iniquity almost exceeds belief. The 
entire amount of the booty already taken from the public and stowed 
away in the pockets of the perpetrators can not be less than one hun- 
dred millions of dollars, and every six months they make a new de- 



POLITICAL ESSAYS AND LETTERS, 309 

mand, which is honored at the treasury by an additional payment. I 
am told that a late Attorney-General counts one hundred and eighty 
millions as the sum which the United States will lose in solid cash, 
directly taken out of the treasury. I am not sure that this calculation 
is accurate, but it can not be very far wrong, and it is not equal to 
one half of the whole steal ; for it does not include the value of the 
road itself, nor the land grants, nor the proceeds of the bonds to 
which the lien of the United States was postponed, nor the equipment 
bonds. As this swindle was the largest, so it was one of tlie most 
inexcusably base. It was perpetrated at a time when the nation was 
swamped with debt, when the people were loaded with taxes, and 
when tlie most rigid economy was imperatively required. All circum- 
stances, as well as the direct evidence, show that it was no sudden act 
of thoughtless imprudence, but was willfully, deliberately, and cor- 
ruptly prearranged and determined. There is nothing to mitigate it ; 
you can not defend it even by waving the bloody shirt. 

How did the Republican party "punish its own rascals " in this 
case ? Not a hair on the head of any rascal was touched. On the 
contrary, they were promoted, honored, and advanced ; the most guilty 
of them are now, as they were before, the very darlings of the pai'ty. 
Even that is not the worst of it. These swindlers are periodically 
swelling the colossal proportions of their crime by taking out of the 
treasury additional millions which they claim as the "precious re- 
sults" of their original fraud. They have no better title to them than 
a wolf has to the mutton he slaughters by moonlight. The legal 
remedy against these exactions is so plain that ignorance alone could 
hardly miss it. But your officers have found out the way not to do 
it. They permit the Government to lie down and be robbed semi- 
annually, by a corporation which Tilden would long ago have disarmed 
of its power, and whose criminal abettors he would have swept into 
the penitentiary by scores. 

I repeat that I do not blame you as an active accomplice in this 
wickedness. But you ought to have come out from the evil and cor- 
rupt fellowship as soon as you saw how evil and corrupt it was. You 
owed it to yourself, your Church, and your country, to break off at once 
from political associates capable of such indefensible conduct. But 
your acceptance of the doctrines planted at Plymouth by the Yankees 
blinded your judgment, and made your conscience inaccessible to the 
principles planted in Jerusalem by the "people first called Christians 
at Antioch." 

You would have us believe that Hayes, if elected, will reform 
abuses and give us a pure administration. Your statement, and that 
of other gentlemen equally reliable, make it certain that Mr. Hayes 
bears an irreproachable character in all his private relations. I do not 
doubt his possession of that negative honesty which it is a disgrace to 



310 POLITICAL ESSAYS AND LETTERS. 

want. I accord him those tame household virtues which entitle him 
to the respect of his neighbors and the confidence of his family ; but 
he can no more stem the torrent of Eepubhcan corruption than he can 
swim against the rapids of Niagara. His whole history shows that he 
would not even make an effort to do so. He has been most happily 
called *'a man of tried subserviency." 

A reformer in these times must be made of stern material. He 
must have no connection with, and be under no obligation to, the 
authors of the abuses which need reform. Above all things, he must 
not have consented, expressly or impliedly, to the commission of the 
public wrongs which his duty as a reformer would require him to 
punish. When he comes to oppose wickedness in high places, the 
consciousness that he himself is in pari delicto will make even a strong 
man as nerveless as infancy. 

To show how hard it would be for a man like Mr. Hayes to resist 
the worst orders of his own party, I will cite a case directly in point, 
and certainly within your recollection as well as mine. 

In the case of Milligan, you made an eloquent and powerful speech 
before the Supreme Court for those free principles which I, at the 
same time, supported in my weaker way. You showed the indestruc- 
tible right of every citizen to a legal trial ; you proved that Magna 
Charta did not perish on the battle-field ; you demonstrated by irre- 
sistible logic that the Constitution was supreme after the war as it was 
before ; you spurned with lofty contempt the brutal idea that law was 
extinguished by the victory of the forces called out to defend it ; and 
you closed with that grand peroration on the goddess of Liberty, 
which, if spoken at Athens in the best days of her " fierce Demo- 
cratie," would have "shook the arsenal and fulmined over Greece." 
These were not the words of a paid advocate, for you had volunteered 
in the cause ; nor the sudden emotions of a neophyte, for you had 
read and pondered the subject welL You spoke the deliberate conclu- 
sions of your mind, and there is no doubt that in your heart of hearts 
you believe them to be true this day. 

Yet when the reconstruction law was proposed, you suffered your- 
self to be whipped in, surrendered your conscience to your party, and 
voted against your recorded convictions, for a measure that nullified 
every provision of the Constitution, whereby ten millions of people 
were deprived of rights which you knew to be sacred and inalienable. 

If this was your case, what subserviency may not be expected from 
Mr. Hayes, when the party lash comes to be laid on Ms back ? You 
are his superior in every quality that holds a man true to public duty. 
You have been carefully schooled in the morality of the New Testa- 
ment, you have lived all your life in the full blaze of the gospel, you 
are gifted with a logical acumen which few can boast, and with moral 
courage far above the average. If you fell down before the Moloch of 



POLITICAL ESSAYS AND LETTERS. 311 

abolitionism, and gave up all principle at once, what act of worship 
will Hayes deny to that grim idol ? 

Speaking of reconstruction, and seeing your broad accusations of 
treason, I am tempted to ask if you are sure that you yourself and 
your associates did not commit that crime. 

In March, 18G7, the then existing Government of the Union was 
supreme all over the country, and every State had a separate govern- 
ment of its own for the administration of its domestic concerns. That 
Government was entitled then, if it ever was, to the universal obedience 
of all citizens, and you, its officers, had taken a special oath of fidelity to 
it. Nevertheless, you made a deliberate arrangement not only to with- 
draw your support from it, but to overthrow it totally in ten of the 
States ; and this you did hj military force. In all the South you levied 
war against the nation and against the defenseless States, destroyed the 
free governments of both, and substituted in their place an untempered 
and absolute despotism. 

Now, suppose you had been indicted for this : how could you have 
escaped the condemnation of the law ? I know your excuses, and I 
can understand your claims to mercy ; but what legal defense could 
you have made consistent with your own argument and the decision 
of the court in the Milligan case ? 

I can not describe to you how unpleasant is the sensation produced 
by your professions of a desire for peace. Why do you not give us peace 
if you are willing we shall have it ? You need but to cease hostilities, 
and the general tranquillity will be restored. You refuse to do that 
because peace would endanger your party ascendency. To maintain 
your plunderers in power, you have uniformly resorted to the bayo- 
net ; you have made civil war the chronic condition of the country ; 
wherever you could you have displaced liberty, fraternity, and equality, 
and given nothing instead but infantry, artillery, and cavalry. You are 
at this moment openly engaged in preparing your battalions for armed 
intervention in the struggle of the people with the carpet-baggers. 

What makes this worse is your closing declaration that you will 
take no step backward. There is to be no repentance, no change of 
policy, and consequently no peaceful or honest government. '' On- 
ward " you say is the word. Onward — to what ? To more war, more 
plunder, more oppression, more universal ba,nkruptcy, heavier taxes, 
and still worse frauds on the public treasury ? 



312 POLITICAL ESSAYS AND LETTERS. 



THE GREAT FRAUD. 

" Thou hast it now, King, Cawdor, Glamis, all, 
As the weird women promised, and I fear 
Tliou play'dst most foully for't." 

Since the first formation of what Washington called " our happy 
system of government," no event not accompanied with violence or 
war has excited a feeling so intense as the act of '^ counting in Hayes." 
But the public men of the country, and the people generally, are far 
from being agreed about its character or its probable effect in the 
future. 

Democrats, who knew Mr. Tilden to be elected by an overwhelm- 
ing majority, both of the popular vote and of the electors duly ap- 
pointed, were transported with passionate indignation when they saw 
his defeated competitor lifted over his head by a series of manoeuvres 
which they thought alike incompatible with honesty and law. In 
every part of the country, by the press, from the rostrum, and in the 
halls of Congress, the charge of base and unmitigated fraud was thun- 
dered into the ear of the world. Some, who indulged in no vehe- 
mence of objurgation or reproach, were bowed down with shame at the 
thought that their proud right as American citizens, of electing a ruler 
for themselves, had been taken out of their hands by a trick, and trans- 
ferred to a set of low conspirators, whom they could not help but hold 
in utter detestation. All that once ennobled the nation seemed to be 
buried in this deep grave, dug by the Returning Board and filled up 
by the Electoral Commission. 

But the voice of lamentation proves nothing ; neither does the 
wrath which "cleaves the general ear with horrid speech" : for both 
are the natural utterances of a defeated party, especially when the 
defeat comes unexpectedly, after victory was assured, and in ways not 
foreseen. There is another side to the case. 

The men who did this deed will not admit it to have been wrong, 
or let judgment of condemnation go by default. Some misgivings 
there may have been here and there ; but nearly all zealous Republi- 
cans saw it with unreserved approbation. Not only the herd of low 
politicians, who always ramp and swear and bluster on the winning 
side, but high-placed gentlemen of good character heard the announce- 
ment with pleasure, that what we call the Louisiana swindle was too 
sacred a thing to be questioned. The decision was hailed by Christian 
statesmen with loud benedictions. On Sunday, the 4tli of March, 
pious Republicans assembled themselves together in prayer-meetings, 
and simultaneously sent up to heaven the most fervent petitions that 
God would bless the Returning Boards and the Electoral Commission, 
sanctify the w^ork of their hands, and prosper the pseudo President 



POLITICAL ESSAYS AND LETTERS. 313 

whom they had placed in power. Elsewhere the party demonstrated 
its pleasure by firing off a large number of great guns. In some places 
the admiring people gathered in gay and festive crowds, and drank 
deep potations to the defeat of Tilden's big majority, while Bradley 
and Kellogg, Chandler and Packard, Wells, Anderson, and the two 
mulattoes, were "in their flowing cups freshly remembered." In 
both houses of Congress the representatives of the party to whom 
Mr. Hayes belonged stood square and solid in defense of his title. 
They heard the imputation of dishonesty upon themselves and their 
fellow-partisans with no sign of shame or fear. On the contrary, 
" hope elevated and joy brightened their crests," as they saw the im- 
posture progress step by step to its consummation. Two members 
from Massachusetts were troubled with scruples, and one from Florida 
denounced the fraud which elected himself as well as Hayes ; but this 
could scarcely be said to break the unanimity of the party. Since the 
close of the session they have seemed to enjoy their triumph mightily, 
and the applause of their beloved constituents has not been wanting to 
increase their self-satisfaction. 

It is very manifest from all this that the party calling itself Ee- 
publican differs toto coelo from the Democratic view of the subject. 
Republicans believe either that no fraud has been committed, or else 
tliat a fraud by which they profited was a fit and proper thing for 
them to do. Whichsoever of these positions they take, a question is 
raised which demands fair, full, and free discussion, so that truth may 
prevail and justice be done. If the organs and representatives of the 
Democracy have merely raised a false and malicious clamor against 
their opponents, they deserve the severest reprehension that the cen- 
sure of the world can visit upon them ; they should be deprived of 
all political influence, and no share in public business, local or na- 
tional, should ever again be trusted to their control. On the other 
hand, if it be true that we have an administration of the General 
Government which is not the result of an honest election, but the 
mere spawn of a corrupt conspiracy, then popular liberty has been 
deeply, perhaps fatally, injured, and all who aided in the crime, all 
who gave comfort to the criminals, and all who knowingly partook of 
the iniquity by receiving its wages, ought to be, and in the fullness of 
time they undoubtedly will be, classed among the worst malefactors of 
the age. 

The prominent and well-known facts of the case, set forth in the 
plain style of simple narration, will show whether the count was hon- 
est, and, if not honest, whether any excuse can be found for its false- 
ness. But to make this more intelligible, it is necessary to remind the 
reader of certain points in our political history which have within the 
last twenty years divided the two parties and defined their antagonism. 

The powers of the Federal Government, the rights of the States, 



314: POLITICAL ESSAYS AND LETTERS. 

and the liberties of the peoiDle — these constitute the essential parts of 
the system to which our fathers set the seal of their wisdom and vir- 
tue. This trinity of political forces, so harmoniously adjusted that 
each gave strength to the others, did indeed seem to make a Govern- 
ment as nearly perfect as possible. Each was a vital part ; the '' life 
of the nation " depended upon the preservation of one as much as the 
other ; the Government (using the word in its true American sense) 
would as certainly be destroyed by the overthrow of popular liberty, 
or the subjugation of the States, as by successful resistance to Federal 
authority. 

These notions of fidelity to the whole of the Government, and 
every part of it, placed the Democracy, during the civil war, in the 
most difficult attitude that can be conceived. They were obliged to 
fight secession, and fight it with the sword, if nothing else would do ; 
for to them rebellion against the lawful authority of the United States 
was ''as the sin of witchcraft." At the same time the best convic- 
tions of their hearts impelled them to defend their individual rights 
of life, liberty, and property, which were most wantonly and unjustly 
assailed by the abolitionists. Seeing their institutions attacked on 
both flanks at once by different enemies, most of them thought it 
best to simplify their duty by postponing their resistance to one until 
the other was conquered. They hoped that, when the Union was re- 
stored, the Constitution would be allowed to reassume its supremacy 
without further ojDposition. This hope was founded on very solemn 
declarations by the President (Lincoln) that he was a true friend of 
the Constitution, and meant no war except purely in defense of the 
United States. Besides, Congress, by a vote nearly unanimous in 
both houses, assured the country that the war had not any revolu- 
tionary purpose whatever, but should be conducted solely to enforce 
the laws, and to maintain the supremacy of the Federal Constitution, 
with all the rights of the States unimpaired. 

All these pledges were most perfidiously broken. The ultra-abo- 
litionists, at the close of the war, had a two thirds majority in Con- 
gress, and could do what they pleased. They refused to keep faith. 
They insisted that the Government was revolutionized ; that State 
rights had ceased to be ; that personal liberty in the Southern States 
had been extinguished ; that the peo^Dle of the South, being conquered, 
bore to the conquerors no legal relation except that which existed be- 
tween the King of Dahomey and the Guinea negroes whom he cap- 
tured and sold ; that they might be governed without law, and espe- 
cially without regard to that fundamental law which the legislators 
were sworn to observe in all their acts. The Constitution, instead of 
being defended, had been shot to death on the battle-field. It was 
dead, and could not be pleaded to protect the weak, or restrain the 
evil passions of the strong party. 



POLITICAL ESSAYS AND LETTERS. 315 

Upon this principle the Keconstructiou Act of 1867 was based. 
It was simply a slave-code. Not one provision of the Constitution 
was left unviolated ; all the rights which our forefathers, on this or 
the other side of the Atlantic, shed their blood to maintain, were in- 
sultingly overborne. If the Constitution still lived, this act of Con- 
gress was a gross breach of the oath which the members had taken to 
support it ; if we suppose it dead, the act was a most indecent outrage 
on its corpse. 

For a time the Southern people lived at the mercy of the military 
officers who were sent to keep the yoke tight upon their necks. Most 
of these, being gentlemen of honor and humanity, they did the work 
of oppression reluctantly, and sometimes failed altogether. General 
Hancock, for instance, startled the authorities at Washington by a 
published letter in favor of civil liberty. It became plain that this 
*' sabre sway" would not last long nor be perfectly effectual while it 
continued. The divine right of the negro to govern the white man 
was then asserted, and his ascendency secured, by the Fifteenth Amend- 
ment, in the confident hope that his ballot would be a more effectual 
instrument of tyranny than the soldier's bullet. 

The people would not have been wholly crushed, either by the sol- 
dier or the negro, if both had not been used to fasten upon them the 
domination of another class of persons, whose rule was altogether un- 
endurable. These we call carpet-baggers, not because the word is 
descriptive or euphonious, but because they have no other name where- 
by they are known among the children of men. They Avere unprin- 
cipled adventurers, who sought their fortunes in the South by plunder- 
ing the disarmed and defenseless people ; some of them were the dregs 
of the Federal army — the meanest of the camp-followers ; many were 
fugitives from Northern justice ; the best of them were those who 
went down after the peace, ready for any deed of shame that was safe 
and profitable. These, combining with a few treacherous " scalawags," 
and some leading negroes to serve as decoys for the rest, and backed 
by the power of the General Government, became the strongest body of 
thieves that ever pillaged a people. Their moral grade was far lower, 
and yet they were much more powerful, than the robber-bands that 
infested Germany after the close of the Thirty Years' War. They 
swarmed over all the States from the Potomac to the Gulf, and settled 
in hordes, not with intent to remain there, but merely to feed on the 
substance of a prostrate and defenseless people. They took whatever 
came within their reach, intruded themselves into all private corpora- 
tions, assumed the functions of all offices, including the courts of jus- 
tice, and in many places they even "run the churches." By force 
and fraud they either controlled all elections or else prevented elections 
from being held. They returned sixty of themselves to one Congress, 

and ten or twelve of the most ignorant and venal among them were at 
21 



316 POLITICAL ESSAYS AND LETTERS. 

the same time thrust into the Senate. This false representation of a 
people by strangers and enemies, who had not even a hona fide residence 
among them, was the bitterest of all mockeries. There was no show 
of truth or honor about it. The pretended representative was always 
ready to vote for any measure that would oppress and enslave his so- 
called constituents ; his hostility was unconcealed, and he lost no op- 
portunity to do them injury. 

Under all these wrongs and indignities the Caucasian men of the 
South were prudent, if not patient. No brave people accustomed to 
be free ever endured oppression so peacefully or so wisely. The Irish, 
with less provocation, were in a state of perpetual turbulence ; the 
Poles were always conspiring against the milder rule of their Russian 
masters : but Southern men " made haste slowly " to recover their 
liberties. They could not break the shackles of usurped control, but 
some of the links gradually rusted and fell away of themselves. The 
gross impolicy of desolating the fairest half of the country impressed 
itself more and more on the Northern mind ; the mere expense, in 
money, of maintaining this vulgar tyranny became disgusting. The 
negroes gradually opened their eyes to the truth that they were as 
badly imposed upon as the whites. With consummate skill the natu- 
ral leaders of the people hoarded every fresh acquisition of self-govern- 
ing power. State after State deposed its corrupt Governor, by impeach- 
ment or otherwise, and brought its official criminals to justice, until 
all were redeemed except Florida, South Carolina, and Louisiana. A 
more particular look at the condition of the last-named State is needed, 
because it was the principal theatre of the " Great Fraud." 

The agricultural and commercial wealth of Louisiana made her a 
strong temptation to the carpet-baggers. Those vultures snuffed the 
prey from afar ; and, as soon as the war was over, they swooped down 
upon her in flocks that darkened the air. The State was delivered 
into their hands by the military authorities, but the officers imposed 
some restraints upon their lawless cupidity. They hailed with delight 
the advent of negro suffrage, because to them it was merely a legalized 
method of stuffing the ballot-box — and they stuffed it. Thenceforth, 
and down to a very recent period, they gorged themselves without let 
or hindrance. 

The depredations they committed were frightful. They appropri- 
ated, on one pretense and anotlier, whatever they could lay their hands 
on, and then pledged to themselves the credit of the State for un- 
counted millions more. The public securities ran down to half-price, 
and still they put their fraudulent bonds on the market and sold them 
for what they would fetch. The owners of the best real estate, in town 
or country, were utterly impoverished, because the burdens upon it 
were heavier than the rents would discharge. During the last ten 
years the city of New Orleans paid, in the form of direct taxes, more 



POLITICAL ESSAYS AND LETTERS. 317 

than the estimated value of all the property -within her limits, and still 
has a debt of equal amount unpaid. It is not likely that other parts 
of the State suffered less. The extent of their spoliations can hardly 
be calculated, but the testimony of the carpet-baggers themselves 
against one another, the reports of committees sent by Congress to 
investigate the subject, and other information from sources entirely 
authentic, make it safe to say that a general conflagration, sweep- 
ing over all the State from one end to the other, and destroying 
every building and every article of personal property, would have been 
a visitation of mercy in comparison to the curse of such a government. 
This may seem at first blush like gross exaggeration, because it is worse 
than anything that misrule ever did before. The greediest of Eoman 
proconsuls left something to the provinces they wasted ; the Norman 
did not strip the Saxon quite to the skin ; the Puritans under Crom- 
well did not utterly desolate Ireland. Their rapacity was confined to 
the visible things which they could presently handle and use. They 
could not take what did not exist. But the American carpet-bagger 
has an invention unknown to those old-fashioned robbers, which in- 
creases his stealing power as much as the steam-engine adds to the 
mechanical force of mere natural muscles. lie makes negotiable bonds 
of the State, signs and seals them "according to the forms of law," 
sells them, converts the proceeds to his own use, and then defies jus- 
tice ''to go behind the returns.'* By this device his felonious fingers 
are made long enough to reach into the pockets of posterity ; he lays 
his lien on property yet uncreated ; he anticipates the labor of coming 
ages and appropriates the fruits of it in advance ; he coins the indus- 
try of future generations into cash, and snatches the inheritance from 
children whose fathers are unborn. Projecting his cheat forward by 
this contrivance and operating laterally at the same time, he gathers 
an amount of plunder which no country in the world would have 
yielded to the Goth or the Vandal. 

While the carpet-baggers in the executive offices and the legislat- 
ure, assisted by Federal agents, were making enormous " piles " and 
plotting for more, petty larceny reigned supreme in the rural parishes. 
The negroes knew nothing of the difference between meum and tuum, 
and the law which should have taught them was a dead letter ; every 
portable thing which could not be kept under lock and key — pigs, 
poultry, the fruits of the garden and orchard — were stolen as fast as 
they were fit for use, insomuch that the production of them had to be 
given up, greatly to the distress of all industrious and honest persons. 
Even the heavier crops, such as cotton and corn, were carried away 
from the fields at night, and traded for liquor and groceries at " stores " 
which were established for that particular branch of internal commerce. 

Security of life can never be counted on where property is not pro- 
tected ; when the public authorities wink upon theft, the people are 



318 POLITICAL ESSAYS AND LETTERS. 

driven by stress of sheer necessity to defend themselves the best "way 
they can, and that defense is apt to be aggressively violent. Justice, 
infuriated by popular passion, often comes to its victims in a fearful 
shajje. Disorders, therefore, there must have been, and bloodshed and 
violence, and loss of life, though they are not enumerated or clearly 
described in the reports. It is known that bands of "regulators" 
traversed many parts of the State, and the fact is established that 
seven of the storehouses used as places of receiving stolen goods were 
burned to the ground in one night. The officers of the carpet-bag 
government " cared for none of these things." They saw the struggle 
between larceny and Lynch-law with as much indifference as Gallio 
looked upon the controversy between the Jewish synagogue and the 
Christian church at Ephesus. This horrible condition of society was 
caused solely by the want of an honest government. 

But this is not nearly the worst of it, if carpet-baggers themselves 
and their special friends are worthy of any credence at all. They tes- 
tify to numerous other murders, wanton, unprovoked, and atrocious, 
committed with impunity under the very eyes of their government. 
Genera] Sheridan says he collected a list olfour tliousand assassinations 
perpetrated within three years. Senator Sherman and his associates 
of the visiting committee swell this number greatly, and add that "■ lialf 
the State was overrun with violence." No effort was made to repress 
these disorders or punish the criminals. Nobody was hung, nobody 
tried, nobody arrested. The murderers ran at large ; the victims fell 
at the awful average of about four every day, and the public officers 
quietly assented to let ^' i\\Q rifle, the knife, the pistol, and the rope 
do their horrid work " without interruption. Are such men fit to 
govern a free State ? " Fit to govern ! No, not to live." 

If an officer, Avhose duty it is to bring a felon to justice, connives 
at his escape, or willfully allows him to go free, he becomes an acces- 
sory after the fact, and by all civilized codes his offense is as great as 
that of the principal. Certainly such an officer is morally responsible 
to God and man for a mui'der which he, by the exercise of his proper 
functions, might have prevented, but did not. Apply this rule to the 
Louisiana carpet-baggers, and measure the de^Dth of their iniquity. 

There is an aggravation of it, in the fact stated by Mr. Sherman, 
that most of these murders were done upon negroes, many of them 
females, and some of them mere children. The carpet-baggers pro- 
fessed to be the special friends and protectors of the African race ; yet 
they permitted them to be slaughtered by thousands with quiet uncon- 
cern, not lifting a finger to stay the wholesale destruction of their lives. 

Is there any mitigation of the terrible guilt thus imputed to them 
by their friends ? Some of their advocates say they were too weaTc to 
maintain public order, and were afraid even to try. This will not 
do ; for imbecility or cowardice in such circumstances is as bad as 



POLITICAL ESSAYS AND LETTERS. 319 

willful default. A magistrate who says he can not punish or prevent 
continued murder is himself a murderer unless he gives place to some- 
body else who can. But in truth the carpet-baggers did not lack 
strength ; and no courage was required. Legal process was never 
opposed ; the great body of the people were on the side of law and 
order ; in every parish the sheriff could raise an irresistible posse; the 
aid of the United States Marshal, with thousands of Avilling and well- 
paid deputies, could always be commanded ; the State had the largest 
police force in America ; and at the back of all, " leashed in like 
hounds," the solid battalions of the Federal army '' crouched for em- 
ployment. " 

But let us be just. Kellogg and his confederates do not deserve all 
this infamy. The story of four thousand murders is part of the Great 
Fraud, and was fabricated to serve as an excuse for the false count. 
The heads of the administration at AVashington may properly be 
called its creators, for they said, "■ Let it be made, and it was made." 
The theory was that murder and violence, which the carpet-bag 
officers were too weak or too Avicked to stop, gave them a paramount 
claim to the perpetual continuance of their disorderly rule, and that 
therefore the votes of a popular majority against them or their candi- 
dates for Governor and President ought not to be counted. Acting 
upon this view, they made up for the then existing government 
of Louisiana the *' bloodiest record on the page of time," and used it 
on all occasions as a standing answer to every demand for an honest 
count of the votes legally polled. That this was the predetermined 
intent as avcII as the actual use of it is very apparent. General Sheri- 
dan accompanied his statement with a proposition, not only to disfran- 
chise certain political organizations opposed to the carpet-baggers, but 
to outlaw them as banditti, and leave them to be shot and strangled 
by the soldiery under his orders ; and the Secretary of War assured 
him that his course was highly approved by the President and all his 
Cabinet.* Senator Sherman and his visiting committee, after giving 
a most revolting account of the cruelty, bloodshed, and violence prac- 
ticed under the carpet-bag government, conclude that if the people, 
by their majority already recorded, shall prevail against it and its 
presidential candidate, " then shall the glories of the Republic have 
departed." Senator Morton, speaking from the bench of the Electoral 
Commission, drew his strongest argument for a false count from the 
murders perpetrated under carpet-bag auspices. Senator Howe, of Wis- 
consin, advocating the fraud, went minutely into the history of many 
unpunished homicides ; he smeared and daubed the Kellogg govern- 

* This dispatch was hastily written by the Secretary of War, who, without intendini:; it, 
did great injustice to a part of the Cabinet. We have the authority of General Belknap 
himself for saying that Mr. Fish and Mr. Bristow indignantly protested against General 
Sheridan's atrocious proposition. 



320 POLITICAL ESSAYS AND LETTERS. 

ment with innocent blood, and pronounced it eminently ^' rcspectaUe.^^ 
Nearly all the lesser lights took the same line of argument. It was a 
grievous wrong against the carpet-baggers to weave this bloody stripe 
into the web of their history, which was bad enough without that ; 
but to set it up as a reason for disfranchising the people who vote 
against a government so stained seems like a new species of moral in- 
sanity. 

To parade acts of violence and murder perpetrated within the juris- 
diction of a carpet-bag government was called, in the flash language 
of the politicians, ''waving the bloody shirt," and considered a most 
effective mode of electioneering. A bloody shirt of their own, always 
ready to be waved, was a great merit ; and they " assumed the virtue, 
though they had it not." It was proved before Mr. Morrison's com- 
mittee that a homicide story, which included the death of a black 
person, was thought, by some Eepublicans, to be as good for the party 
as fifty thousand dollars added to its campaign fund. * According to 
this valuation, Sheridan's collection of four thousand was Avorth two 
hundred millions of dollars. The carpet-bag officers did not object 
to the fictitious account of their own bloody baseness ; for it was in- 
tended to keep them in their places ; and if it had that effect, they 
were content to be infamous. But how the great leading statesmen 
of the country ever came to adopt the idea that the wickedness they 
charged upon the carpet-baggers would, if true, bo a just ground for 
depriving the people of the right to vote them out, is one of the mys- 
teries which may possibly be solved hereafter ; but with the lights we 
have now it is wholly incomprehensible. 

The wretched system of carpet-bag government could not possibly 
last. From the first it had no real support. The native people and 
the honest immigrants, who went there for purposes of legitimate busi- 
ness, held it in abhorrence, and the negroes were not long in finding 
out that it was a sham and a snare. As early as 1870, and before that, 
the handwriting was seen on the wall which announced that a large 
and decisive majority of all the votes, black and white, had determined 
to break up this den of thieves. They must therefore prepare for 
flight or punishment, unless they could contrive a way of defeating 
the popular will Avhenever and however it should be expressed. Then 
the Returning Board was invented. 

This was a machine entirely new, with powers never before given 
to any tribunal in any State. Its object was not to return, but to 
siqjpress, the votes of the qualified electors, or change them to suit 
the occasion. By the terms of the law it can exclude, suppress, anni- 
hilate, all the votes of a parish for violence, intimidation, or fraud, 
which it finds to have been committed and adjudges to have materially 
influenced the result of the poll. This is judicial authority so broad 
* Report of Mr. Morrison's Louisiana Committee, February 1, ISVY, p. 14. 



POLITICAL ESSAYS AND LETTERS. 321 

that no court would consent to exercise it — inflicting the fearful pen- 
alty of disfranchisement ujion thousands at once, without a hearing 
and without legal evidence, not for any offense of their own, but for 
the supposed sin of others over whom they confessedly have no control. 
Of course, it is in direct conflict with the State Constitution, which 
declares that all judicial power shall be vested in certain ordained and 
established courts, and forbids it to be used even by them, except upon 
trial before a jury, and conviction on the testimony of credible wit- 
nesses confronted by the accused and cross-examined by counsel. It 
is, besides, a most insolent affront to the fundamental principles of all 
elective government, for it makes the poll of the people a mere mock- 
ery, which decides nothing except what the Returning Board is pleased 
to approve, and elects nobody whom the Returning Board does not 
graciously favor. Its power to veto a popular vote extends to all elec- 
tions, for every class of officers, judicial, legislative, ministerial, and 
executive, including electors of President and Vice-President. 

All men will agree that when violence, fraud, intimidation, etc., 
occur at an election, some action ought to be taken upon it to bring 
the offenders to justice. But this law requires that the election offi- 
cers report the fact, not to the judicial authorities of the State, in order 
that the guilty parties may be tried and punished, but to the Return- 
ing Board, so that it may impose the penalty of disfranchisement upon 
innocent citizens without trial. The sliglitest consideration of this 
one provision shows that the Returning Board law had no honest pur- 
pose, that it " was conceived in sin and brought forth in iniquity," 
and that its object was to cheat from the beginning. 

No man with sense enough to know his right hand from his left 
will need to be told that a monstrous thing like this can not be con- 
stitutionally fastened upon a free State. A government that makes 
it one of its institutions ceases to be republican, either in form or sub- 
stance. The statute of Louisiana which undertook to create it was a 
mere nullity, and all its proceedings were destitute of legal authority. 
It was at one time asserted that the Supreme Court of the State had 
held it constitutional and valid, which, if true, would prove that the 
court was no better than the Board ; bat the case cited shows that no 
such point was raised, debated, or determined. 

The Board consisted of five persons. They were originally ap- 
pointed by a carpet-bag Senate, without end of their tenure and with 
power to fill vacancies, which made them a close corporation and gave 
them perpetual succession. To put on some show of fairness, the law 
required that all parties should be represented. This was at first 
thought to be met by the appointment of one Democrat ; but wlien a 
deed of more than common baseness was to be done, the Democrat 
was got rid of, and the other four, desiring to work in secret, refused 
to fill his place. 



322 POLITICAL ESSAYS AND LETTERS. 

This suppressing Board did its work thoroughly from the start. 
It was never known to falter. Since its first organization in 1870, the 
majority of the whole peojile had been decidedly against the carpet- 
baggers at every election. But the Board always intercepted the re- 
turns, and so altered them as to make a majority the other way. Kel- 
logg was a candidate for Governor; he was largely defeated : but the 
Board certified him elected. The certificate was so glaringly false 
that carpet-baggers themselves would not help to install him, and 
Democrats determined to assert their rights. It was then that General 
Grant, to the unspeakable shame of the nation, lifted him into office 
on the bayonets of the army. Afterward the outraged people rose in 
revolutionary wrath, drove him to shelter in the custom-house, and 
inaugurated the man they had lawfully elected. Again the President 
made war on the State, and restored the usurper to the place which 
did not belong to him. The Democrats regularly elected a majority 
of the Legislature ; as regularly the Eeturning Board certified a ma- 
jority of their seats to carpet-baggers or scalawags or negroes not 
chosen ; and Avhen the true members met to organize for business the 
army was punctually on hand to tumble them out of their hall. 

Such was the condition of things when the parties took the field 
in 1870. The Democrats girded uj) their loins for a combat more im- 
portant to them and their children than any they had yet been engaged 
in. They were not only to choose a Governor, Legislature, and State 
officers, but a President and Vice-President who would respect their 
rights, and not set aside their election by brute force. Messrs. Hayes 
and "Wheeler were not believed to be evil-minded men, but they be- 
longed to the anti-constitutional party, and their platform j^ledged 
them to walk in the footsteps of Grant ; while, on the other hand, the 
just support of the people against the lawless outrages of the carpet- 
bag usurpers was written down among the first of the many reforms 
which Messrs. Tilden and Hendricks would be sure to introduce. The 
Democrats were without doubt a great majority over the carpet-bag- 
gers and the negroes who still adhered to them. False voting or cheat- 
ing in the registration could not defeat the true men of the State. If 
they could only get their votes honestly counted, added up, and cred- 
ited to their candidates, they would certainly be free in the future 
from the tyrannical domination which held them in durance for so 
many years. They felt that under these circumstances the electoral 
franchise was a possession inestimably precious : 

" To lose 't or give 't away 
Were such perdition as notliing else could match." 

They were, therefore, uncommonly cautious not to impair this great 
right, or endanger the success of its exercise, by any act which could 
brinff them under the denunciation of even the Returning Board law. 



POLITICAL ESSAYS AND LETTERS. 323 

All the clubs were earnestly and constantly exhorted, in circulars and 
otherwise, to "be careful to say and do nothing which could be con- 
strued into a threat or intimidation of any character," and advised to 
take affidavits on the day of election at each polling-place that no dis- 
turbance had occurred there. 

The election came off on the proper day, supervised and controlled 
at every polling-place by officers of the carpet-bag interest. According 
to their own count the result was a majority of 7,639 for the Tilden 
electors. It has never yet been denied that this majority was made 
up of ballots cast by citizens legally qualified. The vote was regularly 
taken and properly counted, and a true record of it made in perpetuam 
rei memoriam. These facts being undisputed, it follows that the 
Tilden electors were thilT/ appointed, if the people of the State have 
the appointing power, which they certainly have, unless the Constitu- 
tion and the statute-book are not to be relied on. 

But the opponents of Tilden and Hendricks determined that the 
record of the appointment made by the people should be mutilated 
and changed so as to make it appear as if electors for Hayes and 
Wheeler had been chosen. They j)retended to believe that violence 
and intimidation had frightened the African Hayes men from the 
polls, and that their cowardice ought to be visited in the form of dis- 
franchisement on the heads of others who had intrepidity enough to 
perform their political duty. The allegation was utterly false. It 
Avas made, not only without evidence to sustain it, but in the face of 
overwhelming proof to the contrary. All the places of registration 
and voting were guarded by the creatures of the Federal and State 
administrations, superintendents, commissioners, deputy marshals, and 
soldiers, and all of these with one voice said that the elections were 
peaceable and free. Indeed, it is literally impossible that any intimi- 
dation or violence could have been practiced. No sensible person ever 
gave credit to it for a moment. Notwithstanding much mental anxi- 
ety about the result, various reasons combined to make the election in 
Louisiana probably the most quiet and undisturbed in the Union. 

The charge of actual intimidation at the polls having been ex- 
ploded almost as soon as it was made, another was tried which stood 
a little longer. The intimidation, it was said, occurred, not at the 
election, but at other times and elsewhere : somebody, unnamed and 
unknown, had breathed out threatenings and slaughter so violent that 
many thousands absented themselves. This was vague enough to 
excite a superstitious belief in the existence of a '* bulldozer," whom 
nobody had ever seen except as the goblin is seen which the imagina- 
tion bodies forth from the evening mist. But it vanished into thin 
air when the truth appeared that this was the largest vote ever given 
in Louisiana, larger in proportion to the whole population than the 
average of all the States in the Union. 



324 POLITICAL ESSAYS AND LETTERS. 

Lastly, they fell back on the naked fact that a considerable num- 
ber of negroes had voted the Democratic ticket, and insisted that this 
was in itself sufficient evidence of intimidation. They built this the- 
ory on the assumption that no negro could ever be moved against a 
carijet-baggcr except by his personal fears, and that all appeals to his 
other passions, or to his reason and conscience, must necessarily be in 
vain. In fact and in truth, a large percentage of the African popula- 
tion were from the beginning very strongly impressed against the 
strangers who had come into the State to rob the natives. Most of 
them were very stupid, but many had sense enough to see that this 
would come to no good. They had one cause of complaint which 
influenced them strongly. Much of the ponderous taxation under 
which the people suffered had been imposed on the pretense of schools 
for the elevation of the negro ; when the fund came into the hands of 
carpet-bag officers they stole it of course, and left the negro to his 
aboriginal ignorance. The negroes, not liking this kind of elevation, 
became excited, and in some places large bodies of them together 
broke away from the carpet-baggers. Their revolt was perfectly nat- 
ural ; and it would have been universal, if their stupidity had been 
only a little less dense. Yet it is persistently asserted in effect that 
the carpet-bagger owns the negro by a title so incontestable that the 
vote of the latter is never withheld from the former except because of 
bulldozing, whereby the white Democrat ought to lose not only the 
vote given him by the negro, but his own vote in the bargain. 
This preposterous view pervades all the discussions on that side, inso- 
much that the foremost Republicans of the country have thought 
themselves making an argument for disfranchisement of Democrats 
by merely showing that the vote for the carpet-bag candidates fell 
below the aggregate number of black electors in a particular parish, or 
was less than that given at some former election. 

One curious case of bulldozing is given by Mr. Morrison's com- 
mittee. The negroes of East Feliciana fell away in large numbers 
from the carpet-baggers, and so many expressed their intention to vote 
on the other side that a considerable majority for the Democratic can- 
didates was plainly foreseen. The chiefs of the carpet-baggers at New 
Orleans, being informed of this, instructed the local leaders of the 
parish not to vote ; no ticket was put forth on their part ; not a single 
Republican vote was cast, even by the parish officers. This was done 
on 23urpose to lay the groundwork for a charge of intimidation. East 
Feliciana was declared a bulldozed parish, and all the people in it 
were disfranchised. 

Even if we assume the righteousness of the principle embodied in 
the Louisiana election law, that one man may be disfranchised because 
another has intimidated a third, there was no show of ground upon 
which the Democratic majority could be questioned. The minority 



POLITICAL ESSAYS AND LETTERS. 325 

therefore left the case to the Keturning Board, in full confidence that 
it was corrupt enough to act as desired without evidence, agahist law, 
and in defiance of the known truth. 

The persoti7iel of the Board justified the faith of the carpet-baggers 
and their allies. If the evidence concerning its members be rightly 
reported by the investigating committee, they were marked out by 
the history of their previous lives, noted and signed to do any deed of 
shame which might be required at their hands.* Wells was a custom- 
house officer at New Orleans, and one of the worst of that bad lot — a 
defaulter to the State of long standing, without character for integ- 
rity or veracity, and for thirty years regarded as unwortliy to be 
trusted. Anderson's character for honesty was equally bad ; he had 
earned it in part by aiding, while he was a Senator, to put up a fraudu- 
lent job upon the State, and taking the iniquitous proceeds to himself. 
Of the two mulattoes, one was indicted for larceny, and, after admit- 
ting his guilt, was allowed to escape punishment, and promptly taken 
into the Board. The other was too ignorant to know his duty, but 
his testimony showed such indifference to the obligations of an oath 
that he was deemed as safe for the carpet-baggers as either of his col- 
leagues. 

They comprehended the situation, saw the difficulty of the work 
before them, and resolved to make it pay in something better than 
mere promises of ''recognition," however "generous and ample." 
Wells, who was their spokesman, in private as in public, wrote in 
strict confidence to a carpet-bag Senator then at Washington a letter 
which, being condensed into plain English, means this : f "There's 
millions in it. See our friends and act promptly. Buy us immedi- 
ately, or we will sell out to the other side. Talk freely to the gentle- 
man who presents this ; he knows the moves." To the bearer of the 
letter he explained that it was very hard work to count in the Eeimb- 
lican candidate — the Democratic majority was too large to handle ; 
he wanted to serve his party, but he would not take this job without 
compensation : he must have "two hundred thousand dollars apiece 
for himself and Anderson, and a smaller sum for the niggers." On 
this basis he authorized his embassador at Washington to negotiate 
with the Eepublican managers. J At the same time he was offering 
himself at New Orleans to the Democrats, at first for half a million, 
but afterward proposed that he would leave in enough votes to elect 
Mr. Nicholls (Democratic candidate for Governor) if two hundred 
thousand dollars cash were first placed in his hands.* 

The Board, getting hold of the returns under the election law, 

* Report of Mr. Morrison's Louisiana Committee, February 1, 18'7'7, p. "7. 

f See the letter in Rep. Select Com. on Powers and Priy., Feb. 1, 1811, p. 180. 
X Rep. Com. Priv. Powers, pp. 144, 145. 

* Rep. Com. Priv. Powers, p. 382. 



326 POLITICAL ESSAYS AND LETTERS. 

proceeded to alter them in such manner as to bring out a result totally 
false. They averred that the Eepublican or carpet-bag candidates for 
Governor, Lieutenant-Governor, and for electors of President and 
Vice-President, and all State officers had a majority of the votes, and 
finally declared their election in formal certificates. It was not a mis- 
take. As a mere blunder it was impossible. If they had been ''fools 
as gross as ever ignorance made drunk," they could not have been led 
into any error about it. It was without doubt the work of a pre- 
arranged conspiracy to cheat the people of the State and the Union. 
The proofs, direct and circumstantial, that it was dishonest, corrupt, 
and fraudulent, are so numerous and so irresistibly strong, that no 
man can stand up and deny it, unless, in the language of Mr. 
O'Conor, he "has lost the faculty of blushing." In branding this 
transaction with utter and irredeemable infamy, the Democracy have 
not spoken without the book — nay, not without many books ; for is it 
not written on all the records of Congress ? Is it not reported by 
numerous committees ? Is it not attested by clouds of witnesses ? 
Is it not proved by papers which the conspirators themselves have 
made ? 

The action of the returning officers in this whole business was un- 
supported by legal authority. The Legislature of the State did not, 
because it could not, give them power to disfranchise qualified elect- 
ors. They lacked, therefore, the general jurisdiction which they 
assumed. But tliat is not all : they proceeded in the very teeth even 
of the void statute which they professed to follow. That statute pre- 
tends to give them no such authority as they exercised over any return 
to which a protest or statement or charge <A intimidation is not at- 
tached, when it is sent in by the Supervisor of Registration, or the 
Commissioner of Election, and the charge so attached to the return 
must be supported by the affidavits of three citizens of the proper 



Wanting this, the Board was absolutely without the pretense of 
power to touch the return from any parish or polling-place, except 
for the purpose of compiling it, and adding it as true to the others. 
By the election law of Louisiana, the Board has no more authority to 
examine or decide a question of intimidation, which is not raised by 
the election officers, than a private individual would have to steal it 
from the records and burn it. So stands the law. The/«c^ is estab- 
lished, by conclusive evidence, that from every one of the Democratic 
parishes the returns came up without any charge, statement, or pro- 
test. In all those cases they were, therefore, without color of jurisdic- 
tion.* But the conspirators could not afford to be balked of their 

* If any one doubts this proposition, let him look at Senator Bayard's elaborate ex- 
position of it, where he will find it established by such unanswerable reasoning, and such 
a wealth of authority, that perversity itself will admit the law to be as he lays it down. 



POLITICAL ESSAYS AND LETTERS. 327 

game by the failure of the local officers to make a false charge of in- 
timidation. These votes must be excluded i)er fas aut nefas, and the 
Returning Board must do it ; that was what the Board was made for. 
The returning officers went upon the principle aut invenlam aut fa- 
dam. They made the protests which they could not find ; affidavits 
which no creature in the parishes was base enough to back with his 
oath were fabricated in the custom-house, and used by the Board 
with a full knowledge that they were mere counterfeits. The exclu- 
sion of returns on the ground of intimidation was in every case dis- 
honest, for in none was there a particle of evidence to justify it. 
When nothing else would serve the purpose, they did not scruple a 
resort to plain forgery. Of the return from Vernon Parish, every fig- 
ure on the whole broad sheet was altered, with elaborate pains, under 
the special direction of Wells. Perjury and subornation of perjury 
entered largely into the business. There is hardly any s}>ecies of the 
crimen falsi for which the law has a punishment that did not become 
an elementary part of the Great Fraud which was committed when 
the defeated electors and State officers of Louisiana were falsely certi- 
fied as chosen by the people. 

It seems necessary and proper — but it is difficult — to say what 
judgment should be given on the conduct of the distinguished Eepub- 
lican gentlemen, headed by Senator Sherman, who went to Louisiana 
to see the count made. Were they accomplices in the crime of the 
Eeturning Board ? Whosoever wishes to answer this question fairly, 
must remember that he is speaking of men who stand high, not for 
talents alone, but for all the virtues which win public confidence and 
inspire general respect. All presumptions are in their favor ; nothing 
can be justly concluded against them except from the clearest proof. 
It must therefore be considered as settled that they had no connection 
with the forgeries of particular return j)apers or with the perjuries of 
the custom-house ; if Wells was bought with anything beyond the 
promise of '' recognition," they had nothing to do with the bribery ; 
no knowledge of these specific offenses has been traced to them. But 
they might have caused a true count of the votes if they had wished 
it ; one word of honest reprobation from them would have paralyzed 
the rascality of the Returning Board. If they had complied with the 
requests of the Democrats, to use their joint influence for justice and 
truth, the conspiracy would have broken up in an hour. They did 
undoubtedly know, what everybody else knew, that the Tilden electors 
had been duly appointed by a majority of nearly eight thousand votes 
legally cast ; they could not help but see that at least. And they 
must have known that no just reason and no legal authority existed to 
alter this result or falsify the record which proved it. Yet they re- 
fused to open their lips for the right of the people to choose their own 
agents ; asserted the constitutional power of the returning officers to 



328 POLITICAL ESSAYS AND LETTERS. 

clisfrancliise qualified voters ; comforted these miscreants with the as- 
surance of their defense — did, in fact, defend them even to the extent 
of pronouncing extravagant eulogies upon them ; in short, encour- 
aged, aided, and abetted, by every means in their power, the perpetra- 
tion of the Great Fraud, and after it was done held it up as a right- 
eous act. 

These gentlemen probably have some excuse for their behavior 
which has not yet appeared. The presidency, all the jobs and offices 
of the Union, and four years of exemption from the hand of Tilden's 
sweeping reform, depended upon the game they were playing. The 
stake being so heavy, and the dice ready loaded to their hand, the 
temptation to a foul throw was very severe. Perhaps it is too much 
to expect that a body of politicians in these degenerate days should act 
with scrupulous honesty, like the men who filled high stations in early 
times. The false philosophy of Seneca, that all immoralities are 
justified when done regnandi causa, gains ground upon us rapidly. 
The rules which meet with universal observance in private affairs are 
set at naught in political action. Election frauds are practiced by 
men who would not cheat in a horse-trade ; bogus returns are palmed 
off as true by those who would scorn to pass counterfeit money ; and 
Christian statesmen are not expected to know that stealing the vote 
of a State comes within the prohibition of the eighth commandment. 

But they do not measure their conduct by a safe standard if they 
think it right, under any circumstances, to cheat a self-governing 
nation by nullifying the legal vote of its people. No matter how 
little respect they may have for the judgment of the mass, conceding 
that our naturalization laws are too liberal, and negro suffrage wholly 
unwise, it must still be remembered that this right of voting lies at 
the foundation of our political structure. We have no public institu- 
tions that are not built upon that. Our Ship of State has no other keel, 
and the perfidy that scuttles the bottom exposes cargo, crew, and pas- 
sengers to utter destruction. Besides, we have all agreed with one an- 
other that the will of the whole people, as a collective body, shall be 
spoken by the major number of individuals : we promised and swore 
that we would be governed by that will. If we violate this solemn 
compact, we are covenant-breakers, and can expect only to be turned 
out among " the nations which know not God." Moreover, taking the 
lowest possible view of the subject, and considering a presidential 
election as a mere game of skill or hazard, he must be regarded as a 
political black-leg who snatches and makes off with the stakes he has 
lost according to the rules. 

Another question rises here, which the Muse of History may an- 
swer at her leisure : Is there any justification of General Grant's con- 
duct in this business ? Within two or three days after the election it 
became perfectly well known to the whole country that in Louisiana 



POLITICAL ESSAYS AND LETTERS. 329 

there had been a full poll, and a large majority for the Tilden electors. 
No reason was suggested by anybody for falsifying this result. The ap- 
prehension that it would be falsified in the return arose slowly out of the 
fact that the election machinery of the State was in the hands of mere 
knaves who were just base enough to do it ; and these were General 
Grant's own knaves, whom for years he had kept in their places by 
lawless force. It was then that he said no man could afford to be 
President by a fraud, and sent a committee to see that a true count 
was made. This was fair-seeming enough; but he did not row the way 
he was looking. Every one of his committee favored the fraud, and 
their report, which he indorsed and sent to Congress, was a defense of 
it from beginning to end. He had supported and enforced frauds of 
the same kind several times before, and now his troops were at New 
Orleans avowedly to protect the carpet-baggers while they were re- 
peating them on a large scale. Besides, when Chandler promised the 
fraudulent Governor of Florida to send troops and money to that 
State after the election — troops and money to count the votes — he 
declared in one of his dispatches that the President had been con- 
sulted. Still further, while his party in Congress were holding up 
the fraud, he answered the arguments in favor of Tilden's right by 
ordering to the capital all the cavalry, artillery, and infantry within 
reach. Whether these circumstances be sufficient or not to convict 
him of participation in the fraud, let the world judge. 

When the wrong was accomplished at New Orleans — when the Re- 
turning Board had suppressed the Democratic majority, and Kellogg 
certified, what he knew to be false, that he himself and seven other 
men of the same sort were chosen by the people as electors of Presi- 
dent and Vice-President ; when these false j^retenders actually met as 
electors, made out and sent to Washington their own vote, to be 
counted as the vote of the State — nobody except those engaged in it 
had the least belief that such a swindle could ever succeed. Demo- 
cratic denunciation was loud, to be sure, but quiet, unpartisan people 
laughed at the folly of it. A little while afterward the aspect of 
things changed materially. The country was astounded to discover 
that the commanders of the Republican forces had made up their 
minds to carry it through if they could. It would be unjust to say 
that this resolution was unanimous. Several members of the lower 
house expressed their decided opposition to it. An unascertained 
number of Senators, including the ablest Republicans in the body, are 
well understood to have been altogether averse ; but, not seeing the 
way of resistance open, they were silent, and permitted the dead 
weight of their influence to lie on the fraudulent side of the scale. 
Some of the foremost journals of the administration party denounced 
it in unequivocal terms, as did also the whole independent press. The 
great lawyers of the Republican party would not endure it ; for in- 



330 POLITICAL ESSAYS AND LETTERS. 

Stance, Mr. Carpenter, of Wisconsin, and Mr. Field, of New York, who 
had voted against Tilden, assaulted the foul conspiracy with the whole 
force of their logic and eloquence. But the fraud was defended by 
men whom the party was accustomed to obey, the mutinous were 
brought under control, the indifferent were quickened into active 
participation, and ''lewd fellows of the baser sort" rushed to the 
work as to a labor of love. So it came to pass that a great politi- 
cal party, comprising American citizens of all the best classes, was 
thrown with nearly its whole momentum of weight and velocity 
upon the side of a manifest and most notorious swindle. To the im- 
mortal honor of the Democracy, not one of its men in any part of 
the country shrunk from his duty or wavered in his allegiance to the 
truth. 

But how was the object of the conspiracy to be accomplished ? 
The House of Eepresentatives was Democratic, and without its con- 
sent, expressed or implied in some form or another, the Senate could 
not give effect to a false count. The first intention was to claim that 
the President of the Senate had power to determine absolutely and 
arbitrarily what electoral votes should be counted and what not. This 
was the great rallying-point until Mr. Conkling took it up, and, in a 
speech of surpassing ability, utterly demolished and reduced it to in- 
visible atoms. It became settled, therefore, that the two houses must 
count the votes, and this clearly implied the power to inquire and 
determine what were votes. It could not be denied that the voice of 
the House of Representatives was at least as potential as that of the 
Senators ; and it was not supposed that the House would suffer a fraud 
so glaring as this to be thrust down the throat of the country '' against 
the stomach of its sense." But if the two bodies would declare incon- 
sistent results of the count, and proclaim the election of different 
Presidents, a state of things might come which would subject our 
institutions to a strain severe enough to endanger them greatly. It 
was in these difficult circumstances that a mixed commission of fifteen 
was proposed, consisting of five Senators, five Representatives, and five 
Judges of the Supreme Court. The mode of appointing them made 
it certain that fourteen would be equally divided between the parties ; 
and, as the fifth Judge would be named by the consent of his brethren 
on both sides, he might be expected to stand between them, like a 
daysman, with a hand as heavy on one head as the other. The Demo- 
crats consented to this in the belief that no seven Republicans could 
be taken from the court or from Congress who would swear to decide 
the truth and then uphold a known fraud ; if mistaken in that opin- 
ion of their adversaries' honesty, they felt sure, at all events, that the 
umpire would be a fair-minded man. They were bitterly disappointed ; 
the Commission went eight to seven for the Great Fraud and all its 
branches ; for fraud in the detail and in the aggregate ; for every item 



POLITICAL ESSAYS AND LETTERS. 331 

of fraud that was necessary to make the sum total big enough — eight 
to seven all the time. 

We must look at the state of the case as it went before the Com- 
mission. Tilden and Hendricks had 184 electoral votes clear and 
free of all dispute, one less than a majority of the whole number. 
They also had in Louisiana eiylit, and in Florida four, appointed 
by the people, but falsely certified to Hayes and Wheeler by the 
Governors. In Oregon they had one certified by the Governor, but 
against whom a popular majority had been cast for an ineligible 
candidate. To elect Hayes, it was necessary that each and every one 
of these thirteen votes should be taken from Tilden and given to 
Hayes. As this required many distinct rulings based upon contra- 
dictory grounds, the path of the Commission was not only steep, but 
crooked. 

The great and important duty cast upon the Commission by a 
special law and by a special oath of each member was to decide, in the 
case of contested votes from a State, "whether any and what votes 
from such State are the votes provided for hy the Constitution of the 
United States, and how many and what persons were duly appointed 
electors in such State." It is not denied that the sole power of ap- 
pointing electors for the States of Louisiana and Florida is in the 
people. It was then and still is an admitted fact that the people had 
exercised the power of appointment in the prescribed and proper way ; 
they did duly make an appointment of electors, and their act was duly 
recorded, and so made a perpetual memory. This thing was not "done 
in a corner" ; it was "seen and known of all men." That each of the 
two States named had duly appointed Tilden electors at a regular elec- 
tion called for that purpose on the 7th of November, in pursuance of 
law, was a part of their history as much as the fact that they were 
States of the Union. All the members of the Commission knew it as 
well as they knew the geographical position of Tallahassee or New Or- 
leans. It needed no proof ; but if specific evidence had been required, 
there was the record, from which the truth glared upon them as clear 
as the sun. They shut their eyes upon the record, and refused to see 
" how many and what persons were duly appointed electors " by the 
people, but listened eagerly to the evidence {aliunde though it was) 
which showed " how many and what persons " had been designated 
by the returning officers. It was ultimately held {eight to seven) that 
the appointees of the Returning Board were duly appointed, and the 
appointees of the people were unduly appointed. Did the Eight sup- 
pose that the legal power to make such an appointment was vested by 
law in the Keturning Boards ? Did they think it was not vested in 
the people? No, that is impossible. But they may have conscien- 
tiously believed that the interest of their faction would be well served 
by Hayes's election. They may have been prompted by a virtuous 

22 



332 POLITICAL ESSAYS AND LETTERS. 

admiration of carpet-bag government, and were sincerely anxious to 
save it from Tilden's reform. 

But this decision in favor of fraud wliicli so shocked the common 
sense and common honesty of the nation was not made without some 
attempt to justify it. The Eight gave reasons so many and so plausi- 
ble that Kellogg and Wells must have chuckled with delight when 
they heard them. One argument very seriously urged was that it 
would be troublesome, and require a great deal of time, to ascertain 
who was duly appointed by the people. It was much easier to accept 
the false vote and say no more about it. To decide how many and 
what persons got certificates from the Eeturning Board was a short 
and simple process ; but to push the inquiry behind that — to inquire 
whether the certificate was honest, to look for the evidence Avhich 
would show who were duly appointed — liic labor hoc opus est. The 
Seven reminded the Eight, but reminded them in vain, that the due 
appointment which nobody in the world, except the people, had the 
least right to make, was the very thing which they were there to find 
out ; and they could not be excused from a duty to which they were 
pledged and sv/orn by the mere inconvenience of performing it. Be- 
sides, the Eight knew very well that there was no difficulty in it ; it 
was but looking at the record of the appointment as the people made 
it up ; they could read it as they ran ; the truth was plainer than the 
lie ; the honesty of the case was as easily seen as the fraud. But no 
persuasion could influence them to cast even a glance at the actual 
appointment. What did they think this Commission was made for? 
Why was this great combination of learning and statecraft set up ? 
According to the Eight, its sole purpose was, not to determine any 
matter in dispute between the i^arties, but merely to declare that the 
Eeturning Boards had certified for the Hayes electors ; which every- 
body knew already and nobody ever denied. If its object was what 
the law said — to decide who were duly appointed — then the Eight suc- 
ceeded in making it merely a splendid abortion, because, among other 
reasons, it was too much trouble to make it anything else. 

But the Commission, following the lead of counsel for Mr. Hayes, 
insisted that the certificate of the proper State officer ought to be re- 
garded as conclusive evidence of the appointment made by the people. 
It is undoubtedly true that the State has a right to speak on this sub- 
ject through her own organs, and, when she does so speak, her voice 
should be regarded as true. But what officer is her proper organ ? 
The Governor being her political chief, and his certificate being re- 
quired by act of Congress, it would not have been unreasonable to hold 
that it was conclusive unless tainted with fraud. The Hayes electors 
had the Executive certificate in Louisiana and Florida, and this in re- 
gard to those States gave the Eight a great legal advantage. But they 
threw it away, abandoned the attestation of the Governor as worthless. 



POLITICAL ESSAYS AND LETTERS. 333 

claimed no faith or credit for it, and pronounced it open to contradic- 
tion, no matter how honestly it may have been given. What was the 
meaning of this phenomenal ruling which apparently opened the door 
of investigation even wider than the Democrats asked ? It was under- 
stood by everybody. The Commission was hedging for Oregon. The 
Eight were reaching across to the Pacific for the one vote there, which 
was just as important as the twelve on the Gulf of Mexico. 

But having gone behind the Governor's certificate for the sake of 
correcting errors, could there be any possible justification for stoj)ping 
before the truth was reached ? If the head of the Commonwealth, 
whose attestation is required by Federal law, went for nothing when- 
ever it was contradicted, how could the conclusiveness be asserted of 
a paper made by subordinate officers unknown outside of the 8tate, 
and powerless even by the local law to make a certificate of more than 
prima facie validity ? Yet the Electoral Commission (eight to seven) 
decided that the Governor's certificate might be set aside for a mere 
mistake of law or fact, while that of the Eeturning Board would stand, 
though known to be founded on falsehood and saturated all through 
with corruption. 

The unvarying preference of the eight Commissioners for the false 
over the true becomes very striking at this point. When they got be- 
hind the Governor's papers, they found lying aliunde two other sets 
of documents, one of which was a record of the actual appointment 
made by the people, the other was a mere fabrication of the Returning 
Board without any semblance of truth ; they embraced the latter witli 
all the ardor of sincere affection, and rejected the former with all pos- 
sible marks of their dislike.* 

To give the decrees of the Returning Boards the conclusive effect 
claimed for them, it was necessary to hold that they were legally 
invested with judicial powers, and that their jurisdiction, whether 
rightly or erroneously exercised, was absolute over the whole subject- 

* The point contended for by Mr. Hayes's counsel, and decided in their favor by the 
Commission, was that no evidence could be received except the report of the Returning 
Board as to the actual result of the election. The Commission positively refused the 
offer of Mr. Tilden's counsel to prove the facts, and would not receive or look at the evi- 
dence showing that by the precinct and county certificates on which the board acted the 
majority was for the Tilden electors. Yet the "Congressional Record" of February 6, 
1877, p. 29, represents that Mr. Hayes's counsel on the trial read to the tribunal several 
alleged computations of the vote cast at the election, to show that the Hayes electors 
had in fact the majority. These computations, so read, were taken from a report made 
to the House of Representatives by the Republican minority of its committee. If this 
be true, then the Commission received evidence aliunde to bolster up the certificate of 
the Returning Board, while it refused to look at that which would have overthrown it by 
proving its entire falsehood. Mr. O'Conor thinks that this misrepresents the facta of 
the trial, and that it is an interpolation upon the record intended to pervert the truth 
of history. 



33i POLITICAL ESSAYS AND LETTERS. 

matter. In Florida the statute wliich creates the Board gave it noth- 
ing except ministerial powers, and the Supreme Court of that State 
solemnly pronounced its claim of Judicial a^uthority to be altogether 
unfounded. But the Electoral Commission would not be influenced 
by either the written or the unwritten law. The Commission conceded 
to the Louisiana Board all the Judicial power it needed to sanctify 
its disfranchisement of the people in the face of the Constitution, 
which expressly forbade it. This general Jurisdiction was not all they 
bestowed on tliose boards ; they declared in substance that it might 
be well exercised in particular cases where it was not invoked accord- 
ing to the law which gave them being, as, for instance, where a Louisi- 
ana parish sent up its return Avithout a protest, statement, or affidavit. 

The eight Commissioners did not stop there. They went much 
further. They practically Justified and sustained all the infinite ras- 
cality of the Returning Boards. They not only refused to take vol- 
untary notice of the atrocious frauds perpetrated by them, but they 
excluded the proofs of their corruption which the Democratic counsel 
held in their hands and offered to exhibit. These Commissioners 
choked off the evidence, and smothered it as remorselessly as "Wells 
and his associates suppressed Democratic returns. And this they put 
on the express ground that to them it was all one whether the action 
of these boards was fraudulent or not. They would suffer no proof 
of corruption to invalidate the right claimed by a Hayes man to put 
in the vote of a State for his candidate. 

This monstrous and unendurable outrage was resisted to the ut- 
most. All of the Seven implored and protested against it. Judge 
Clifford, the President of the Commission, laid it down as a maxim 
of the common law that fraud vitiates whatever it touches, and proved 
it undeniably. He might have proved more. It is not merely a 
maxim of the common law : it belongs to all countries and all ages ; 
no code can claim it exclusively ; it pervades all systems of Jurispru- 
dence ; it has its home in every honest heart ; it is the universal senti- 
ment of all Just men ; it applies to all human dealings. Judge Field 
looked in the face of the majority, and told them plainly that their 
disregard of this great principle was *'as shocking in morals as it was 
unsound in law," and added : " It is elementary knowledge that fraud 
vitiates all proceedings, even the most solemn ; that no form of words, 
no amount of ceremony, no solemnity of proceeding, can shield it 
from exjiosure, or protect its structure from assault and destruction." 
But the Eight were as deaf as adders to the voice of reason and Justice. 
They would not permit the fraud to be assaulted, much less to be 
destroyed. They stood over it to shield it, protect it, and save it, in- 
terposing the broad tegis of their authority to cover it against every 
attack. 

The Eight persistently denied their power or that of Congress to 



POLITICAL ESSAYS AND LETTERS. 335 

do what tlicy were commanded by the law to do — that is, decide who 
were duly appointed. They would only decide that certain persons 
were named as electors by a Returning Board. They would not under- 
stand that the appointment by the people might be one thing and the 
action of the Returning Board another, or that the latter, even as evi- 
dence of the former, was worthless if it was fraudulent. 

They insisted that the Returning Board certificate must be received 
with all the honors ; to question its verity would be usurpation upon 
State rights which they (the Eight) were most careful to preserve in- 
tact and unimpaired. " But," said they, ''if a Returning Board be- 
haves unfaithfully, the State herself, by her own authorities, must see 
to it and correct the wrong." Thereupon came Florida, and showed 
that she had, in fact, made the correction. All the departments of 
her government — her Legislature, her courts, and her Executive — had 
at different times examined and revised the action of her Returning 
Board ; pronounced it false, fraudulent, and void ; declared that the 
Tilden electors were duly appointed, and left the Hayes candidates 
without a shred of authority to vote for the State. There stood the 
State herself, upright before the august Commission, with all the evi- 
dence in her hand, protesting against the fraud and demanding that 
no vote should be received except the vote of her own electors duly 
appointed by her people. But the Commission answered that under 
the circumstances of this case she had no right to defend liarself 
against the fraud of a Returning Board any more than she had to be 
defended by the Federal authorities. Whatever she might do, or de- 
cide, or resolve upon, the Great Fraud was her master and she must 
submit. So it appeared, after all the fine speeches about State rights, 
that Florida had but one right — the right to bo cheated out of her vote 
by the same knaves who had already robbed her of her 2)roperty. That 
right was sacred and intangible, and the Commission promptly put her 
in full possession of it. 

In the case of Florida there was one piece of evidence offered which 
not only commended itself strongly to the consideration of just men, 
but, being supported by certain artificial rules of pleading and practice, 
it was expected to find acceptance in the narrowest mind on the 
bench. This was the record of a judicial proceeding commenced in a 
Florida court by writ of qw> loarranto at the suit of the State upon 
the relation of the Tilden electors against the Hayes electors. The 
parties came into court and pleaded, and the is3ue made between them 
was whether one set or the other (the relators or the defendants) were 
duly appointed electors of President and Vice-President by and for 
the State of Florida. Evidence was taken, the cause was debated by 
counsel on both sides, and after consideration it Avas adjudged by the 
court, against the defendants and in favor of the State, that the relat- 
ors loere duly appointed and the defendants not. This fact, thus 



336 POLITICAL ESSAYS AND LETTERS. 

determined by the court, was precisely the same fact afterward con= 
troverted by the same parties before the Commission. When sub- 
mitted to the latter tribunal, it was res judicata ; not only true, 
but fixed and settled beyond the reach of contradiction. The judg- 
ment was not impeached for fraud or reversed for error. It was in 
full force and virtue. It Avas not denied that the court which made 
the adjudication had entire and complete jurisdiction both of the 
subject-matter and of the parties. By all reason and all authority 
the Commission was bound to respect this judgment as conclusive 
evidenc9. But to have done this would have made Tilden President 
and defeated the purpose of all the frauds in Louisiana and Florida 
both. They did not do it ; they allowed the judgment to have no 
effect at all. They but looked to see what it was and immediately 
swept it out of sight. They put it far from them, and then proceeded 
to pronounce a different judgment, which suited the Hayes men 
better. How could they break all the bars of legal authority which 
fenced them about ? What starting-hole did they find to escape from 
the corner into which they were driven and penned up by the law of 
the land ? We shall see. 

They said the judgment of the court was too late ; it was pro- 
nounced after the Hayes electors had met and made out their votes, 
and sent them to the President of the Senate. Here were two sets of 
electors, each claiming the exclusive right to vote for the State, and 
both of them actually sent up their ballots. One of them was duly 
appointed, and had the authority claimed ; the other set was neces- 
sarily composed of mere pretenders, who were not duly appointed, and, 
having no authority, their vote was a mere nullity. Which party was 
right, and which wrong ? The conflict must be settled somehow. 
Where was the jurisdiction to determine it ? Undoubtedly, and by 
universal admission, the power was in the courts of the State from 
which both claimants professed to derive their authority. The j^roper 
State court did determine it ; but the Commissioners said that, how- 
ever competent the jurisdiction of the court, it was too late in making 
its decision, and then they proceeded, in the exercise of a jurisdiction 
exactly similar, to decide the same questions of fact and law the other 
way. Now comes the query, if the court's decision was worthless 
because it was late, what was the value of the Commission's judgment 
which was later ? The Eight did actually, not in words, but in sub- 
stance and effect, give vent to the bald absurdity that it was too late in 
January to decide the dispute in favor of Tilden, but not too late in 
February to decide it in favor of Hayes. 

Another thing they said : This judgment, though it proved the 
fact that the Hayes claimants were not duly appointed, and had no 
title to the office of electors, did not invalidate the acts previously 
done by them while they were de facto in the exercise of the powers 



POLITICAL ESSAYS AND LETTERS. 337 

they usurped. There is a just and necessary rule of law which de- 
clares that the validity of acts regularly done by an officer shall not 
depend on the title by which he holds the office. You may remoYe a 
sheriff by a quo warranto without destroying the titles of all who pur- 
chased land at his sales, or a Judge without vacating his decrees, or a 
treasurer without saying that his payment of a public debt is not sat- 
isfaction ; but where a person assumes a special authority to do a par- 
ticular thing the validity of the act does depend on the authority to 
do it. This latter rule applies here. These electors claimed a right 
to vote for the State under a special appointment given them to do 
that one act. When a competent court adjudicated as matter of fact 
that the Hayes electors had no appointment, it was a logical and legal 
necessity which declared the unauthorized votes to be null and void. 
If this were not the principle, then any impostor, or any number of 
impostors, might send up their ballots, and one would be as good as 
another. 

But, again, let it not be forgotten that the Tilden electors had also 
voted at the same time in the same way. Why did not this fact make 
as much weight for them as for the others ? It will excite the wonder 
of the world to learn that, in the opinion of the Eight, a person who 
voted under an appointment given him by the people according to law 
could not be even a de facto elector ; but another person, who had noth- 
ing to claim by except the false, fraudulent, and void declaration of 
a Returning Board, was good de facto, if he was good for nothing else. 
This doctrine of de facto sanctification, saving acts which have no 
other ''relish of salvation in them," and making the votes of unau- 
thorized men as good as if they came from persons duly appointed, 
cuts a great figure throughout the whole case. It is not applicable, 
but the Eight apply it everywhere, and, strange to say, they never use it 
when it does not make in favor of some fraud or other. One Avho votes 
according to the public will of the State, legally expressed through the 
ballot-boxes, is de facto nothing ; but if he was defeated or ineligible, 
he is de facto all he wants to be. One of the Hayes electors in Lou- 
isiana was a Federal officer ; his election was forbidden by the Con- 
stitution of the United States, and he was not elected but beaten at 
the polls ; de facto strained its utmost power on him, and pulled him 
through, in spite of Constitution and people both. But his Demo- 
cratic competitor, who had acted as an elector in the same way and to 
the same extent, was legally chosen by an overwhelming majority, and 
constitutionally eligible ; therefore de facto could do nothing for him. 

In all the discussions of the subject the men disposed to favor the 
conspiracy professed a most profound veneration for the "forms of 
law." This was the key-note struck at New Orleans by the visiting 
committee, and it is heard in every subsequent argument of counsel 
and commissioner on that side. It seemed to be understood among 



338 POLITICAL ESSAYS AND LETTERS. 

them that a formal cheat was perfectly safe from exposure. If the 
sepulchre was whited on the outside, it made no difference that it was 
filled with " corruption, dead men's bones, and all uncleanness." No 
refuge of lies could be swept away, no hiding-place of falsehood could 
ever be uncovered, if it was built in the prescribed form. Only give 
it the legal shape, and the overflowing scourge would be turned aside. 
But legal form, however valuable as a covering for fraud, was, in their 
judgment, no protection for truth or justice or public right. The 
will of Louisiana was pronounced at the election with all the solemni- 
ties required by the law of the State and of the United States. The 
appointment of the Tilden electors on the 7th of November was a per- 
fectly legal piece of work ; there was not a flaw in the record of it as 
it came from the hands of the appointing power. But it was looked 
on with perfect contempt. Neither the visiting committee nor the 
Hayes counsel nor the eight Commissioners bestowed on it any of 
their love. Their affections were otherwise engaged ; they gave the 
homage and devotion of their hearts to the beautiful regularity, the 
exquisite jirecision, with Avliich the Returning Board compounded its 
false certificate. 

Another paradox of the Eight is curious enough to be noted. They 
declared repeatedly that they had no power to try a contested election 
case, and for that reason they would not look at the evidence which 
showed what persons were duly appointed electors by the people. Now 
mark ! The case was this : Each of those votes came accompanied by 
what was asserted to be proof that it was cast by electors duly ap- 
pointed. The conflict was to be determined by the verifying power 
which Congress unquestionably has, and which the Commissioners 
expressly assumed when they swore that they would decide who were 
duly appointed. To decide it one way or the other required precisely 
the same jurisdiction, and called into exercise exactly the same facul- 
ties. Yet they held that, if they decided according to the truth in 
favor of the electors actually appointed, they would be trying a con- 
tested election ; but if they decided in favor of the pretenders, who 
had nothing but a fraudulent certificate, they would not be trying a 
contested election ; in other words, their jurisdiction was full and 
ample to decide it falsely, but wholly unequal to the duty of deciding 
it truly. 

Perhaps nothing shows more plainly the animus of the eight com- 
missioners than the determination they made upon the case of Brew- 
ster, ineligible elector in Louisiana. Keep in mind that their defined 
duty was to decide who were duly appointed, and what votes were 
provided for by the Constitution, and think how they performed it in 
this part of the case. Brewster was not only defeated at the polls like 
the rest ; he was besides a Federal office-holder, and the Constitution 
expressly declares that no such person shall be appointed an elector. 



POLITICAL ESSAYS AND LETTERS. 339 

But for the purpose of electing Mr. Hayes, his vote was worth as much 
as all the others. To get that vote for their candidate, they were re- 
quired to go further than they went for any of the rest, and so they 
held : 1. That the certificate of the Eeturning Board was propria 
vigore an appointment. 3. That it was a due appointment, though 
corrupt and dishonest. 3. That this was a vote provided for by the 
Constitution, though the Constitution in plain ^vo\'(i.s, provided against 
it. 

After all, there was but one question before the Commission. Had 
the American people a right to elect their own Chief Magistrate ? 
They had the right. Their ancestors struggled for it long, fought for 
it often, and won it fairly. Being imbedded in their Constitution, it 
can not be destroyed except by a force strong enough to overthrow 
the organic structure of the government itself. Legislative enact- 
ments or judicial decisions are powerless either to strengthen or im- 
pair it. The legerdemain of law-craft, the catches of special pleading, 
the snapperadoes of practice, do not help us to decide a matter like 
this. A great nation must not be impaled upon a pin's point. Prece- 
dents which might bind a Court of Quarter Sessions determining 
the settlement of a pauper can not tie up the hands of the Supreme 
Legislature defending a fundamental right of the whole people. When 
Grenville, in 1706, cited the authority of divers cases to show that 
America might be taxed without representation, Pitt answered : "I 
come not here armed at all points, with the statute-book doubled 
down in dog's ears to defend the cause of liberty. I can acknowledge 
no veneration for any procedure, law, or ordinance, that is repugnant 
to reason and the first principles of our Constitution. I rejoice that 
America has resisted." So spoke the defiant friend of our race in 
the presence of a hostile Parliament ten years before the Declaration 
of Independence. And now, after this long interval of time, we be- 
hold our greatest right — the right on which all other rights depend — 
successfully assailed in our own Congress with the same small weapons 
that Grenville used. If brute force had crushed it out, we might 
have borne the calamity with fortitude ; but to see it circumvented 
by knavery and pettifogged to death, is too much to be endured with 
any show of patience. 

If the majority of that Commission could but have realized their 
responsibility to God and man, if they could only have understood 
that, in a free country, liberty and law are inseparable, they would 
have been enrolled among our greatest benefactors, for they would 
have added strength and grandeur to our institutions. But they could 
not come up to the height of the great subject. Party passion so 
benumbed their faculties that a fundamental right seemed nothing to 
them when it came in conflict Avith some argument supported by arti- 
ficial reasoning and drawn from the suj)posed analogies of technical 



340 POLITICAL ESSAYS AND LETTERS. 

procedure. The Constitution was in their judgment outweighed by a 
void statute and the action of a corrupt Eeturning Board. 

Let these things be remembered by our children's children, and 
if the friends of free government shall ever again have such a contest, 
let them take care how they leave the decision of it to a tribunal like 
that which betrayed the nation by enthroning the Great Fraud of 
1876. 



LETTER TO MR. STOUGHTON. 

To Hon. E. W. Stougliton : 

If I do not reply to your article in the last number of the "North 
American Review," you will remain under the delusion that your 
argument is irresistible. I will try to correct that mistake by show- 
ing that, if tliere be a defense for the Great Fraud, you decidedly are 
not the person to make it. Doing this mainly for your own edifica- 
tion, I address you directly. 

I separate your personal invective from your discussion of the 
case, though they are so mixed as to make separation difficult, and I 
will consider your objections to my view of the subject as if they had 
been expressed in becoming and decent language. 

You think, as your political friends in general think, that after 
the decision of the Electoral Commission against us, we ought to sub- 
mit in silence and not vex the victorious party with an appeal to the 
tribunal of public opinion. AVe have submitted. The proper rej^re- 
sentatives of both parties agreed to leave the dispute to a body which 
they constituted for the purpose of settling it. We could not refuse 
to abide by the award without being guilty of bad faith. We do not 
now assert the injustice of it with any view to reverse or modify it. 
You need not fear the stability of that award, however iniquitous 
you may know it to be. You can enjoy its fruits in perfect security, 
and we the people will on our part ''perform the vows which we 
have vowed before the Lord," however much it may be "to our own 
hurt." 

But to acquiesce without a protest — to confess tacitly that the 
wrong is right, and the evil a good — that is out of the question. In 
discussing the whole subject Avith great plainness of speech, we not 
only obey an impulse, but perform a duty. For this I will give some 
reasons, and take the chances of making you comprehend them. 

In the first place, it concerns the reputations of nearly all the pub- 
lic men of the present day. You and I are too obscure to be noticed 
by history, but the great characters of our time on both sides will go 
down to posterity clothed with honor or covered with infamy, accord- 



POLITICAL ESSAYS AND LETTERS. 341 

ing as they have been trying to further the fraud or stop it. Remem- 
ber there was a fraud, and a very gross one, committed by one party 
or the other. If the State of Louisiana chose Kellogg and the other 
candidates on the Hayes ticket for presidential electors, and the Demo- 
cratic politicians, knowing this, did, nevertheless, deny the truth and 
fabricated a false return for Tilden, which they persisted to the last 
in trying to pass for a true one, they were a combination of most re- 
demptionless rogues ; and it will be recorded, as an aggravation of 
their crime, that when the righteous majority of the Electoral Com- 
mission crushed out their falsehood they turned about and, with calum- 
nious accusations, charged their own guilt upon their innocent oppo- 
nents. The converse of these propositions is also true. If the Tilden 
electors were duly chosen by the people, and the Republican leaders 
in and out of the State altered the returns, falsified the records, and 
constituted a counterfeit Electoral College, whereby the people of the 
State and the Union were cheated out of the President whom they 
had legally elected by a large majority, then it is only anticipating 
history to say that all who aided, abetted, and encouraged that offense 
ought to be "classed among the worst malefactors of the age." See- 
ing the great interest that hangs on this question, is it not fairly 
worth our while to give it a full examination while the facts are yet 
fresh in the memory of men ? 

Another consideration there is, which makes a public appeal upon 
the subject not only proper, but absolutely necessary, if our convic- 
tions are not founded in total mistake. The candidate to whom you 
are opposed was, as we understand the case, elected by an overwhelm- 
ing popular vote, and by a majority of at least twenty-three in the 
Electoral Colleges. But you defeated the legally expressed will of the 
people and the States, by means of false tokens and divers covinous 
practices, contrary to tlie law and against the moral sense of all honest 
men. The decision of the Electoral Commission, by making the 
fraud perfectly successful, invites a repetition of it, and you undoubt- 
edly loill repeat it, unless you are in some way deterred. Now, the 
nation will not submit to another such outrage. We promote your 
true interests as well as ours if we prevent you from endangering the 
peace of the country by trying this kind of foul play over again. To 
that end the best, as well as the kindest, means I know of, is a com- 
plete exposure of the fraud itself, and a free criticism of the Commis- 
sion, which should have rebuked it, but did not. 

You deprecate every expression from any quarter which is calcu- 
lated to loosen the confidence of the public in the judicial authorities, 
and think, therefore, that the Electoral Commission should be very 
tenderly dealt with. Mr. Jefferson said that jealousy of rulers, not 
confidence, was the virtue of all true citizens of a republic. Withovit 
stopping to consider whether this opplics to judges, as well as other 



342 POLITICAL ESSAYS AND LETTERS. 

officers, I answer yon by saying tliat the Electoral Commission was 
not a judicial tribunal, and did not behave like one. It Avas a political 
body organized for a special occasion, to determine a particular ques- 
tion, ''according to the best of its prejudices" ; and it performed the 
function assigned to it by disregarding the law of the case and shut- 
ting its eyes on the facts. The less confidence we have in such tri- 
bunals the better ; indeed, a reasonable regard for the safety of our 
most important rights requires that we should have none at all. 

You are welcome to the admission (if you think it will do you any 
good) that I look not only with contempt, but with abhorrence, upon 
all the special tribunals which have disgraced the history of our race 
on both sides of the Atlantic, including the Star Chamber, the Court 
of High Commission, all military and all ecclesiastical commissions, 
and all commissions for political purposes. If I could revive in this 
generation the stern hatred which our fathers felt for those dangerous 
enemies of liberty and justice, I would be a great public benefactor, 
and you would never get another commission of any kind to uphold 
fraud, to sanctify persecution, or to oppress the innocent. 

You take violent exception to my use of the word "conspiracy," 
as applied to those unlawful proceedings which resulted in defeating 
Mr. Tildeu's large majority. Of course, you prefer your own euphe- 
mistic phrase, and call it taking "a political advantage." But I can 
not see wherein my term is wrong. Your objection is like that of 
ancient Pistol to the word steal, for which he wished to substitute 
convey. 

To say conspiracy, fraud, or anything else which implies that your 
friends in Louisiana and their allies were guilty of crime, is in your 
opinion coarse and brutal. Your refined taste has been deeply offended 
in this way, not only by me, but by the whole Democracy wherever 
they have written or spoken on the subject, either in Congress, before 
the Commission, or elsewhere. The impoliteness of making the ac- 
cusation has been uniformly heightened by the rough boldness with 
Avhich it was proved to be true, and by the "blistering words" in 
which it was denounced. Perhaps all the Democrats were wrong to 
some extent. It may be that we ought not to have spoken out in 
harsh terms of censure, or said anything to disturb the serenity of the 
knaves who did us this terrible injustice. But if you are not alto- 
gether blind, you must see that this was, in our situation, simply im- 
possible. Here was a great nation which had suffered by misgovern- 
ment more than any other under the sun — her property taxed almost 
to confiscation — her industry crushed to the earth — her public domain 
squandered away — her best citizens starving by the hundred thousand 
in the midst of the plenty which their own labor had produced, while 
corruption was reveling in high places and fattening on the general 
distress. The people determined to reform the administration of their 



POLITICAL ESSAYS AND LETTERS. 343 

public affairs, and restore their own prosperity, by clioosing rulers 
whom they could trust for that i)iirpose. They expressed their Avill 
to that effect legally, constitutionally, and peacefully, and they were 
defeated by an impudent swindle. Is it any wonder that the great 
heart of the Democracy swelled with indignation ? Even if their 
feelings found vent in language too passionate, you ought to remem- 
ber with Burke, that "something must be pardoned to the spirit of 
liberty." 

I concede, however, that no feeling of resentment will excuse us 
for charging a conspiracy where none existed, or fraud where none was 
committed. Even if we were wronged, that does not give us the privi- 
lege of applying terms which do not express the real nature of the in- 
jury. We can jvistify our words only by showing that we use them 
truly, in a sense authorized by the law and the common speech of the 
country. Otherwise our language is, like some of yours, mere vitu- 
peration, disgraceful only to those who utter it. Accei:)ting, therefore, 
the onus probandi, let mo bring your attention to certain facts well 
and publicly known. 

It is proved, if human testimony can prove anything, that the peo- 
ple of Louisiana did, on the seventh of November last past, duly, and 
by regular ballots, make an appointment of presidential electors known 
to be in favor of Tilden and Hendricks, and authorized them to cast 
tlie vote of the State. It is just as clear that the appointment made 
by the peojDle was set at naught by a gross falsification of the records 
and returns of the election. This was effected by the corrupt agency 
of certain local officers, combined with other persons in and out of the 
State, who incited them to it, abetted them in it, and helped them to 
clothe the cheat in what they said were the "forms of law." Is it a 
misnomer to call this a conspiracy ? That offense is defined as a com- 
bination of several persons to accomi^lish an unlawful purpose, by con- 
certed action. How can you get your friends outside of this defini- 
tion ? Persons acting in this way are always treated as conspirators, 
and, by the law of every civilized country in the world, they are se- 
verely punished. Take one simple and actual case out of thousands 
that might be given. Divers dishonest men at St. Louis combined to 
defraud the United States of their revenue from distilled spirits, and 
they did it by a preconcerted series of false and deceptive returns 
which certain public officers, confederated with them, passed off as 
true. This was held, and justly held, to be a conspiracy, and some 
of the parties to it were sent to the penitentiary. 

Perhaps you do not see the parallel, but the analogue is perfect, 
except in this : that in the case which you defend, the object of the 
combination was to cheat the people out of their right of self-govern- 
ment, while the purpose of the St. Louis conspiracy was to rob them 
of their money. If this makes any difference, it is greatly against you, 



34:4 POLITICAL ESSAYS AND LETTERS. 

for liberty is more precious than gold. In the judgment of the vir- 
tuous and wise men who won the independence and built up the insti- 
tutions of this country, the privilege of choosing our own rulers was 
infinitely the richest part of the great inheritance they left us. With 
a full price in blood and treasure they bought this freedom for their 
children, and I do not know one tolerably decent American who would 
sell even his single right on any terms whatever. At the critical pe- 
riod in the history of Louisiana which occurred last year it was espec- 
ially valuable to her people, for it furnished them the only legal, 
peaceable, and safe measure of relief from the exactions of a most cor- 
rujDt and oppressive government. The successful scheme to cheat 
those people out of their votes for State officers and presidential elect- 
ors is, therefore, a crime of the greatest magnitude, and one which 
requires a cheek of solid brass to defend it without blushing. It is 
far worse than a conspiracy to steal any amount of public money. 
Eunning crooked whisky for a lifetime would be an act of white-robed 
innocence in comparison. 

The ultimate object of this crime gives it a general aspect revolting 
in the last degree ; but its features, when seen in detail, are hideous 
beyond expression. Some returns were entirely suppressed, and others 
were altered ; votes actually cast were thrown out, and others put in 
and counted which were known not to have been polled. The whole 
proceeding was full of false pretenses. Forgery of the most important 
documents was a part of it ; perjury and subornation of perjury at- 
tended it at every step. Shall these things be forgotten or condoned ? 
Do you expect the cheated people of the nation to say, like the eight 
commissioners, that this is as good a way as any to elect a President ? 

One of your allegations is that I intended " to convey the false im- 
pression that the formation of the Commission was the result of a 
Eepublican conspiracy to fraudulently elect a President and Vice- 
President " ; and Judge Bradley, taking your word for it, has made 
himself interesting by a public complaint of the injury to himself. I 
did not say this or anything like it. On the contrary, I referred to 
the Commission as being proposed in certain difficult circumstances to 
avoid the dangers which might spring from a continued and final dis- 
agreement between the two Houses, and as being accepted by the 
Democrats in the belief that justice would be done, and an honest 
decision rendered against the fraud. In all this there is nothing about 
a conspiracy in "the formation of the Commission." I do not know 
that you misrepresented this point willfully. It is one of your char- 
acteristic inaccuracies, like that which charges Dante with the inde- 
cencies of the '' Decameron." 

No ; the conspiracy was not in the formation of the Commission, 
but in the frauds which fabricated and returned those bogus votes. 
The Commission refused to verify the vote and ascertain whether the 



POLITICAL ESSAYS AND LETTERS. 345 

electors that sent them up were duly appointed or not, and in this it 
bitterly disappointed the friends of truth, and grossly violated the 
whole spirit as well as the letter of the law which gave it being. 
"Whether this was mere error or something worse, is not for me or 
you to determine ; but the general judgment will, no doubt, adopt 
the charitable view which I have given, and say that the faculties of 
the majority were too much benumbed by party passion to see the 
facts or understand the law. 

You claim that the certificate of the Eeturning Board gave you 
a ''political advantage." In this you are certainly right. A party 
sued for an honest debt has a great advantage over his creditor if he 
can produce a fraudulent or forged receipt upon the trial. The ad- 
vantage becomes decisive if the tribunal trying the cause is willing to 
accept the false paper, give it the effect of a true one, and permit the 
plaintiff to be cheated out of his debt. But would it bo right, legally 
or morally, for the debtor to tahc such an advantage ? 

Your technical argument in favor of the fraud deserves notice, 
because it is almost your only attempt at reasoning, and because your 
conclusion would be fair if your premises were sound. 

You declare, in broad and unqualified terms, that the American 
people have "no right to elect their own Chief Magistrate" — that 
no such right is imbedded in the Constitution or elsewhere — that, on 
the contrary, "the framers of the Constitution were careful to ex- 
clude from the people the right to elect their own Chief Magistrate." 
I admit that this, if true, ends the controversy in your favor ; for it 
can not have been legally wrong to defeat the attempt which the peo- 
ple made to exercise a right from which they were carefully excluded 
by the Constitution. But this opinion of yours is a total misconcep- 
tion, and will not be adopted by any human being who has the faint- 
est idea of ovir institutions. 

You put your proposition with even more directness and speak 
with unwonted precision when you say, as you do on the same page, 
that the people of Louisiana and Florida have not the power to ap- 
point electors of President and Vice-President. This goes to the 
root of the matter. It proves logically enough that the election at 
which the Tilden candidates were fixed uj)on, chosen, appointed, and 
named as electors, was a mere abortion — a vain effort to perform a 
function ultra vires and merely void. The Eeturning Board and the 
Electoral Commission were justified in treating it with contempt. Of 
such an election it was no harm to falsify the records ; for in their 
best estate they had no value or validity. To forge them was no 
crime, for it prejudiced no right. 

But is it true that the people of Louisiana and Florida have no 
power to appoint electors ? You deny the power of the people to 
appoint, because that power " is by the supreme law of the land (mean* 



346 POLITICAL ESSAYS AND LETTERS. 

ing the Fedoral Constitution) vested in tlic States, to bo exercised in 
such manner as the Legislatures thereof may direct.'" Now, the Legis- 
latures of the two States have directed that the power shall bo exer- 
cised by the people, and this makes their right as clear as if the leg- 
islative enactment had been textually inserted in the Constitution of 
the United States. No argument is necessary to make this intelligi- 
ble to a man of ordinary sense. There is the Constitution and there 
are the laws of the States ; "he that runs may read," though, under 
the circumstances, I sujiposc I must not allow myself to say that " a 
fool can not err therein." 

It is hardly possible to imagine anytliing more preposterous than 
your notion that these laws, which give the power of appoii\tment so 
distinctly and so exclusively to the peo])le, do not give it to them be- 
cause a Returning Board is authorized to collate the votes, add them 
together, and ascertain what choice tiie iieojilc have made ; that the 
power to inspect the record of the election and certify the result is 
the power to elect ; that the right of the people to choose their State 
officers and iiresidontial electors is only the power to send up names 
to the returning ollicer, Avho may choose them or reject them at his 
pleasure ; that when the pcoi)le have made one appointment, and the 
lleturning Board another, the latter is the due a])pointmcnt, and the 
former no appointment at all. 

I will not trouble 30U Avith judicial decisions on this point, or with 
arguments derived from the established canons of construction, for 
thoy would make no impression on your mind. But I think I can 
stagger you by citing the authority of those mighty jurists and states- 
men who until recently ran the government of Louisiana so much to 
your admiration. All of them, without exception, and " without 
distinction of race, color, or former condition of servitude," conceded 
the exclusive right and the unqualified power of the people to appoint 
electors of President and Vice-President for their State. This con- 
cession was not only made in words, it was avowed in every act they 
performed, from the beginning to the end of their domination. 
AVhen Kellogg and his associates wanted the ap]wintment of electors, 
they asked the ])eople for it, and they acknowledged in a thout;and 
forms that the people alone could give it. The returning officers 
themselves never denied the power of the people to choose and ap- 
point whom they i)lcased for electors, as well as for Covernor, Lieu- 
tenant-Governor, and other State officers. Their certificates, whether 
false or true, did not pretend to be proprio vigore an a])pointmcnt. 
Every one of these papers purported on its face to be a mere declara- 
tion of the appointment i)revioiisly made by the people. No candi- 
date who obtained one of them ever undertook to use it cxcei)t as evi- 
dence of a pre-existing right derived from a popular vote in his favor. 
The monstrous doctrine that the Returning Board could create title 



POLITICAL ESSAYS AND LETTERS. 347 

to an elective oftlce was never even broached, unless to be universally 
condemned as untenable. It is a pity that in your long, frequent, 
and aflfectionatc intercourse with the negroes and carpet-baggers at 
New Orleans you did not pick up a little knowledge of constitutional 
law. 

Failing to find any justification in the law for those wlio did this 
deed, you must leave them without an excuse, or find one in the facts 
of the case. Your demurrer is a prejiosterous sham, and you must 
answer over, "Was the true vote of Louisiana counted or not ? 

The great fundamental fact which underlies all others in regard to 
Louisiana is, that the State, by her qualified voters, chose and ap- 
pointed the Tilden electors in duo and legal form. This is i)roved 
by evidence clear and decisive enough to strike all contradiction 
dumb. 

In less than two days after the election, it was known all over the 
country that in Louisiana there had been a full poll and a heavy ma- 
jority for Tilden. Very soon afterward the official count, made and 
recorded in the several parishes by Republican officers of the election, 
were brought together, and the exact vote of each candidate was as- 
certained. The figures could not be made to lie, and all parties 
agreed that the majority for the Tilden electors averaged nearly eight 
thousand. Now, remember, this was a public act, not done in a cor- 
ner, but transacted in the face of the world ; and the uncontradicted 
report of it carried perfect conviction along with it. Upon evidence 
of this kind the most imi)ortant fact in the history of the universe 
was accci)ted as true in all parts of the earth immediately after it hap- 
pened, and for more than eighteen centuries the most powerful minds 
in Christendom have staked upon it their highest interests in this 
world, and their salvation in the next. But there was other evidence. 
Committees of Congress were sent down, charged with the special 
duty of inquiring into the matter on the ground, and they reported 
the true result of tlie election to be as previously stated, that is to 
say, 7,059 majority for Tilden. Even that is not all. The original 
documents and records showing what the vote was, as actually counted 
by Republican Commissioners of Election, authenticated by their 
sworn certificates, and verified by the oaths of many credible persons, 
were produced before Congress and before the Electoral Commission. 
These were conclusive proofs ; they were submitted to your inspection, 
and, if you do not know from them that a large majority of the peo- 
ple at that election voted for Tilden electors and the Democratic State 
officers, you are wholly unfit for your business. But you do know it, 
and can not deny it without totally destroying your character for 
common veracity. Forced by the irresistible strength of the proofs, 
you admit or (to use your own words) assume that the majority for 

the Tilden electors was 7,059. So, therefore, that is settled. 
23 



348 POLITICAL ESSAYS AND LETTERS. 

There is another point of fact that is also established. The major- 
ity for the Tilden electors was made up by the votes of legally qualified 
citizens. 1 do not say this merely because the reception of the votes 
by the proper election officers was per se an adjudication in favor of 
the voters' right, but for the further reason that the election at all the 
polling-places was in the hands and under the complete control of the 
opposing party, who Avould certainly not permit any Democratic vote 
to go in if they could legally keej) it out. Besides, the House Com- 
mittee, when they went to Louisiana with power to send for persons 
and papers, could not find anybody — not a carpet-bagger or a custom- 
house officer — hardy enough to assert that the Democrats had polled 
illegal votes. You have not denied, and I suppose will not, that the 
majority of 7,659, which you admit was cast for the Tilden electors, 
was cast by properly qualified citizens. 

Another thing : the election was free and peaceable. The officers 
reported no disturbance. Every polling-place was manned by police- 
men, deputy-marshals, and soldiers in the interest of the carpet-bag- 
gers, and all of them testify that there was no violence of any kind 
which called for their interference. The same is true with regard to 
the registration. That there could have been no force or intimidation 
at other places, or times, which kept people away from the election is 
proved by the large number that came. The vote was the heaviest 
ever polled in the State ; and larger in proportion to the whole popu- 
lation, as ascertained by the census, than in most other States where 
all the exertions of both parties were used to bring out their last man. 

The necessary result, briefly stated, of all the facts known and 
proved is this : That the people of Louisiana, having the undoubted 
power to choose their own electors, did regularly, duly, and legally 
appoint the Tilden candidates upon a full poll, at a free election, and 
by a large majority ; and the persons thus duly appointed by the peo- 
ple were exclusively capable of casting the presidential vote of the 
State. It followed, as the day follows the night, that the count of 
the eight electoral votes from Louisiana for Hayes was a false count. 

But you say that the officers of the Returning Board, by virtue of 
certain judicial powers conferred on it, could disfranchise the majority, 
nullify their act of appointment, and virtually take the power of choos- 
ing electors into their own hands. This brings us to another disputed 
question of law : Is the Eeturning Board law valid and binding, or a 
mere nullity because of its direct and palpable conflict with the Con- 
stitution ? Let us look. 

Of course, neither you nor anybody will deny that disfranchisement 
of a free citizen is a severe punishment, reserved by the penal law for 
the most infamous crimes. To inflict it is an exercise of the highest 
legal authority. The judicial power in Louisiana is exclusively con- 
fined by the State Constitution to certain enumerated courts, and the 



POLITICAL ESSAYS AND LETTERS. 3^9 

Returning Board is not one of them. Therefore, an act of the Legis- 
lature which gives to such a board any judicial power to punish any 
person for any offense is clearly void. But, in addition to this, it is 
provided by the fundamental law of all free States, including Louisi- 
ana, that even the courts or magistrates capable of holding this power 
shall never exercise it, except upon formal accusation and due convic- 
tion, after a regular trial before an impartial jury. Now, the legislative 
act, which you assert to be constitutional, gives the power to punish 
by disfranchisement to the Returning Board, which is not a court, and 
authorizes it to pronounce sentence of disfranchisement upon all the 
citizens of a parish at once, for an act of violence not committed by 
themselves or by any of them, but by somebody else whom they may 
never have seen or heard of. Even the fact that violence was com- 
mitted by other parties is to be ascertained, not by a trial, but by an 
inquiry conducted in secret, behind the back of the parties, on ex-parte 
statements of their political enemies. The sentence is to be carried 
remorselessly out, though it have the effect of remanding the whole 
people of the State back to a hopeless bondage, from which they are 
struggling to be free. 

Such a law you declare to be constitutional and valid ! There is 
not a half-grown boy in the country of average understanding that does 
not know better. I can not help but believe that a little reflection 
would have saved even you from the shame and folly of making an 
assertion so destitute of all sense and reason. 

But you go further. You not only aver that the power of the 
Legislature to pass such a law can not be doubted, but you declare that 
the Supreme Court of Louisiana has adjudged it to be valid, that is to 
say, consistent with the Constitution. This is extremely injurious to 
that court, and, if believed, it would destroy all confidence in the in- 
tegrity of its judgments. Knowing something of its members, I take 
leave to say that they are utterly incapable of making a decision at 
once so false and so absurd. In fact, they did not. No case ever came 
before them involving the question, and no dictum ever fell from 
either of them which could give the Returning Board or its owners 
the least hope of being sustained as a constitutional body. 

This falsification of a judicial decision, to uphold the power of the 
Returning Board in fabricating election returns, has a curious history. 
In November last, Mr. Stanley Matthews, in a published letter, said 
that the Supreme Court of the State had decided the Returning Board 
Statute to be constitutional. He was immediately picked up by nine 
Louisiana lawyers, who told him in a printed pamphlet that it was not 
true, and asked him with great politeness to correct the error. He 
was silent, but the visiting committee reasserted in its report substan- 
tially the same thing. Again it was met with loud and emphatic con- 
tradiction. Nevertheless, Mr. Sherman in the Senate afterward reaf- 



350 POLITICAL ESSAYS AND LETTERS. 

firmed it, and had the temerity to hold up a book of Louisiana reports 
in which lie said tlie decision would bo found. Those who, for want 
of titnc or interest in the subject, did not examine the report, were in 
some sort compelled to believe what was aflirmed about it by a Senator 
who professed to have carefully read it, and in consequence the repu- 
tation of the Louisiana court suffered severely for a while. IJut tlie 
misrepresentation soon became known for what it really was, and it 
was again thoroughly exposed, as you very well know. Now, after all 
this, here are you at the same work again, parading anew the citation 
proved to be false half a dozen times. The patient pertinacity of 
Pope's spider, reconstructing its web as often as it was swept away, is 
the figure that fits your case ; I will not quote the lines lest they offend 
you by their coarseness. 

You transcribe a passage in which you tell us that the court has 
decided the validity of the statute ; but you are careful not to mention 
the case or the book from which you take it ; it is found, however, in 
the case of Bonner v>i. Lynch, on page 2G8 of the 25th Annual. 
Tiiere is not in that passage, or in that case, or in that book, one word 
tliat alludes in the remotest manner to tlie constitutional question or 
the power of the Legislature to pass such a law. The case, being ex- 
amined, shows that no such point was raised by the record, or discussed 
by counsel, or adjudicated by the court. The sole ({uestion was. 
Whether the court had authority to revise the proceedings of the Re- 
turning Board and correct its errors. Four judges concurred in the 
opinion tliat, inasmuch as no statute expressly gave them that power, 
they could take no cognizance of the subject, for want of jurisdiction 
ratione matericB. You might just as well cite that case to prove the 
constitutionality of the Reconstruction law. 

You claim that this same case not only establishes the validity of 
the act creating the Returning Board, but the conclusive effect of its 
action ; whereas, in truth and in fact, the court holds the direct con- 
trary, and says that a certificate of the board is merely prima facie 
evidence in favor of the person who gets it. How, indeed, could the 
court have done otherwise, seeing that the statute itself declares, toti- 
dom verbis, that the certificate shall be, not conclusive, hut prima facie 
merely ? And here it ought to be noted that, where you profess to set 
forth the provision of the Legislative act which makes the certificate 
of the board evidence, you garble it shamefully and alter it to make it 
fit your assertion that it is conclusive, by cutting out the words which 
declare it to be only prima facie. 

I am not sure that you have made these misstatements with malice 
prepense : 

" But wronj^ is wrou<;ht for want of thought, 
As well as want of heart." 



POLITICAL ESSAYS AND LETTERS. 351 

You utter whatever comes uppermost, if it seems to serve your 
purpose, without stopping to consider whether it is right or wrong. 
Added to this, you have the dangerous gift of talking on a subject you 
know nothing about just as well as if you understood it. This com- 
bination of mental qualities gives you a matchless skill at blundering : 

" As expert divers to the bottom fall 
Sooner tliaa those who can not swim at all, 
So, by this art of writing without thinking. 
You have a strange alacrity in sinking." 

Besides this, the obliquity of your moral vision prevents you from 
seeing either facts or principles as they are seen by others. You have 
no doubt that Wells, Anderson, and the two mulattoes, when they 
corruptly altered and falsified the election returns, " exercised a wise 
discretion." The manifest sincerity with which you make your con- 
fession of this singular faith marks you out for the fittest man that 
could have been found to serve the Great Fraud by blaspheming the 
Constitution of a free State, mutilating her statutes, and imputing to 
her judges absurd decisions which they never made. 

But let that pass. We will now assume that the Returning Board 
was a constitutional body, vested with all the power you claim for it, 
and also that its certificate is conclusive. Does it follow that its action 
is binding, if it be fraudulent ? No : a tribunal with full jurisdiction 
has no more power to commit fraud than a private citizen. A judg- 
ment of the Supreme Court of the United States, upon a matter clearly 
within its authority, is utterly void if tainted with corruption. No 
paper of any kind, no official certificate, no deed, no record, can weigh 
a feather in the scale of justice, if it has been concocted in willful 
falsehood, or procured by actual deception. Such a paper or record, 
when produced in evidence, has precisely the same probative force as a 
forgery : neither more nor less. In saying this, we are backed by the 
good sense and honesty of all mankind, and by rules of law that are 
universally accepted. Nobody has yet dared to deny this principle. 
No Republican counselor met it in argument when the Democratic 
counsel set it forth ; none of the Eight responded when all of the 
Seven presented it. Even you, with all your " strange alacrity in sink- 
ing," can not get down low enough to contradict it. 

Any court, any legislative body, any commissioner or arbitrator, 
who receives a paper known to have been fraudulently made, and gives 
it the effect of a true one, or adopts it as the foundation of a judg- 
ment, or allows it to prejudice any opposing right, commits a most 
scandalous outrage upon law and justice. The principle which ex- 
cludes a document tainted with that kind of iniquity is fundamental, 
axiomatic, and necessary to the safety of all rights, public as well as 
private. It is of universal application, impregnable, unassailable, 



352 POLITICAL ESSAYS AND LETTERS. 

without variableness, or shadow of turning. It stands now as it has 
stood since the beginning of the world, 

" Whole as the marble, founded as the rock, 
As broad and general as the casing air." 

The Electoral Commission was constituted with authority, clearly 
defined, to determine a certain controverted matter of fact ; to wit : 
AVhether Kellogg and his seven associates had been duly appointed 
electors by the people of Louisiana or not. To maintain the affirma- 
tive side of that issue, the certificate of the Returning Board was 
alone relied upon. The eight commissioners, against the solemn 
protest of their seven brethren, accepted that certificate and held it to 
be good, nay, conclusive, proof of the fact averred, although it was, 
and they knew it to be, not only tainted, but saturated through and 
through with the most atrocious fraud, and therefore as corrupt in 
morals and as void in law as the nakedest forgery that ever was made. 

Thus it came to pass that this great cause, involving the title to 
the highest office in the Eepublic, was determined falsely, upon evi- 
dence which no justice of the peace would receive in a suit for the 
price of two sheep. In one of the regular courts of the country, upon 
a trial for land or money, the mere offer of such evidence by counsel, 
knowing its real character, would be extremely dangerous. It would 
not only be rejected, but the guilty counselor would be punished, not 
in the same way (for there is a technical difference), but on the same 
principle, that courts punish the utterance of counterfeit money. To 
pollute the administration of justice, by passing false and fraudulent 
documents upon a court, is indeed very much worse than "shoving 
the queer" upon a shop-keeper. 

Of course, the wickedness of all this depends on the scienter. In- 
voluntary ignorance would be an excuse. But the corrupt character 
of this certificate was known to all the world, and, being a public fact, 
the commissioners as well as everybody else were bound to know it ; 
besides that, the evidence was exhibited to their eyes ; their rejection 
of it assumed it to be true ; and they expressly ruled that no proof 
of fraud, however clear, would diminish the value of the false paper 
in their estimation. So far as I am informed, they have never pre- 
tended to be ignorant of the fact that this vote was the offspring of a 
fraudulent conspiracy, nor have they denied the law, which makes it 
void for that reason. There is, therefore, nothing for it but to leave 
their reputation for judicial integrity, as Bacon left his : "to foreign 
countries, to future ages, and to men^s charitable speeches.^^ 

The eight commissioners and the counsel on their side tried to 
frame a weak excuse for this dereliction of duty by reasoning thus : 
Congress gave the commission no power but what the two Houses 
might have exercised themselves ; the two Houses had no autliority to 



POLITICAL ESSAYS AND LETTERS. 353 

revise election returns from any State ; ergo, the commission must 
receive a false, fraudulent, and void certificate as if it Avere a real re- 
turn, true and valid. In this syllogism the premises, major and minor, 
are unsound, and the conclusion is a non sequitur. Congress has 
power, clear and unquestionable, not to revise the action of the State 
authorities for tlie purpose of correcting their mere errors, but to as- 
certain whether a paper pretending to be a return is a real return or a 
fra;id. If the two Houses are to count the votes, they must have the 
verifying power which enables them to determine what are votes and 
what are not. A fraud or a forgery is not a vote. This verifying 
l^ower was delegated to the commission with directions to ascertain by 
it who Avere duly appointed. The majority did not decline to exercise 
the power ; they assumed it, took it and executed it, but they misused 
and abused it so as not to verify, but to falsify the vote. 

You invoke the name of Judge Church, the present Chief-Justice 
of the State of New York. If that distinguished, upright, and learned 
gentleman is on your side of this controversy, I admit that the Great 
Fraud has a most powerful friend. But your claim that he favors 
your doctrine is prima facie evidence that he is against you ; for, in 
citing authorities, you are nothing if not deceptive. You give us a 
single sentence which you say is his, but you do not tell us whether 
it is from a judicial opinion, a published letter, or the report of an 
oral conversation. Knowing ''the sin that doth so easily beset you," 
I venture to say that this quotation is in some way false : either you 
have made it out of whole cloth, or torn it from its context, or else 
made an application of it which the author never intended. Let us 
look at it. 

You make the Chief-Justice say, that " the authentication of the 
election of the presidential electors, according to the laws of each 
State, is final and conclusive, and that there exists no power to go be- 
hind themJ^ This sentence, with its bad grammar and opaqueness of 
expression, is not like Judge Church's clear and accurate style. But 
he may have said that the results of an election, honestly authenticated 
by the proper authorities of the State, according to its laws and the 
Acts of Congress, ought to be accepted as final and decisive of all 
antecedent disputes about it. That is no doubt his opinion, and I 
firmly believe him to be right on this as on other questions of law. 
But does it follow that a fraud or a forgery may be regarded as a 
proper authentication ? Have the two Houses of Congress, when they 
come to count the votes, no right to distinguish between a true paper 
and a paper void for manifest corruption ? Ask Judge Church to say 
for your comfort and assistance that Congress or any other tribunal 
may lawfully receive, and treat as true, a false paper, known to have 
been concocted in willful fraud. Instead of gratifying your wish, he 
will make the tenderest vein in your heart ache with his contempt. 



354 POLITICAL ESSAYS AND LETTERS. 

Many persons are of opinion that you did not write the article to 
which your name is appended. There is intrinsic evidence that cer- 
tain parts of it were not produced by you ; for instance, the defense 
of the carpet-baggers, which certainly nobody but one of their own 
number would make now, since the Administration at Washington 
has deserted them, and — 

" From their ruined fortunes their familiars slink away." 

But you are made to appear as a believer in the virtue of the 
knaves who almost desolated Louisiana by their exactions, taxed prop- 
erty to a point that made it almost worthless, issued innumerable 
millions of fraudulent bonds, reduced public securities to forty per 
cent, patronized larceny all over the State, and left the people to the 
protection of no law but Lynch law. The writer could not ignore 
these enormities, for he manifestly had read — what you probably never 
took the trouble to look at— the reports made to Congress by Messrs. 
Potter, Foster, Wheeler, Phelps, and otliers, which establish the facts 
incontestibly. It was a sin and a shame to make you express admira- 
tion and respect for these unmitigated scamps, and, facile as you are, 
I wonder that you submitted to it. They might have spared you this 
degradation. Was it not enough for you to have said that the rascal- 
ity of the Returning Board was " the exercise of a wise discretion" ? 

You, or somebody for you, have undertaken to repeat the amazing 
argument that the Eeturning Board and the Electoral Commission 
were right in disregarding the popular vote and setting aside the elec- 
tion in Louisiana (free, full, and fair though it was), because numerous 
murders had been committed in the State during the period of carpet- 
bag rule. It was alleged that these murders had been going on stead- 
ily for years, at the awful average of about four every day, and though 
the perpetrators of them were well known, the public authorities had 
not taken measures to punish a single one. Nobody was hung or 
tried or even arrested. I did not believe this story. It was denied on 
good authority and supported by no credible evidence. But I insisted 
that, if it was true, the people were right in turning out officers who 
suffered such a state of things to exist, and electing others who would 
protect life by a faithful execution of the laws. It did seem to me 
like a new species of moral insanity to say that the law-abiding and 
honest citizens of the State should be disfranchised because they 
had cast their votes against officers who, besides being public plun- 
derers, had taken away all security for life by permitting four thou- 
sand murders in three years to go entirely unpunished. 

Upon this you assert, or at least sign your name to an assertion 
and publish it in a magazine as yours, that I admitted the j^erpetra- 
tion of the murders referred to ; that I justified them, alleging that 
the State government was too weak to punish or prevent them. 



POLITICAL ESSAYS AND LETTERS. 355 

This represents me as the most inhuman monster on tlie earth. A 
man who would justify the unprovoked assassination of four thousand 
peaceable and helpless persons, including women and children, on the 
mere ground that the government was unable to prevent it, would not 
hesitate to commit murder himself whenever he could do it with im- 
punity. This odious charge is pressed upon me explicitly, and re- 
peated in many forms through several pages of violent denunciation. 
Now, mark my answer well. The man who wrote this part of the 
article which passes for yours is a base impostor. Every opinion, 
thought, and sentiment expressed by me is precisely the reverse of 
what he imputes to me. I pronounced the story of the four thousand 
murders what I did then, and do still believe it to be, a sheer fabri- 
cation got up to order for partisan purposes. So far from justifying 
those murders, I declared that, if such outrages had really been com- 
mitted, the carpet-bag authorities of the State had made themselves 
infamous by their failure to punish them. Furthermore, I averred, as 
matter of fact, and showed it very conclusively to be true, that the 
State government was armed with physical power amply sufficient to 
enforce the law, preserve the peace, and protect life. All this I said, 
not in doubtful or obscure language, but so plainly that no man with 
intelligence one degree above that of an idiot could misunderstand 
me. 

The direct, straightforward mendacity of this effort to defame me 
is literally wonderful. I speak soberly and without passion, when I 
say that I think there is nothing like it on record. No reader will be 
able to conceive the grossness of it without comparing your article at 
pages 225-227 with mine at pages 9-11. Even then he will not un- 
derstand it unless ho looks narrowly at the passages which the writer 
pretends to copy from me. They are all fraudulently changed and 
altered. My disbelief in the murder stories of Sheridan and Sher- 
man, my detestation of those crimes if they were in truth committed, 
and of the government which could punish them and did not — my 
unequivocal expression of these sentiments are suppressed and ex- 
scinded from the passages quoted. Disconnected sentences are picked 
out from different places, mutilated, transposed, and then joined to- 
gether as if I had written them continuously in that order, whereby 
the whole sense and meaning of my words are perverted. I am made 
out to be an apologist for murder and mob violence, just as you might 
prove from the Bible that there is no God. This is not an indictable 
forgery, but many a man has served out his term at Sing Sing, who 
would scorn an attempt to ruin his neighbor by the fraudulent making 
or alteration of a paper writing to the prejudice of his character. 

I am told, and I incline to believe, that you did not write this part 
of the article which passes for yours. Some smart carpet-bagger put 
it together, and gave it to you, to try how much he could make you 



356 POLITICAL ESSAYS AND LETTERS. 

disgrace yourself for his amusement or his malice, and you put your 
name to it without knowing whether it was right or wrong. This re- 
lieves you from the imputation of deliberate falsehood ; but why, oh ! 
why were you silly enough to become the cat's-paw of such a mischiev- 
ous monkey ? 

I have spoken mainly of the Louisiana case, because that is the one 
of which you ought to have some special knowledge. You have, how- 
ever, gone into Florida, and tried to defend the decision in favor of 
that fraud. As might have been expected, you make a bungle of it. 
I will restate the j)oints as held by the Commission so far as you at- 
tempt to indicate them. 

Professing to vindicate the great principle of State rights, the 
Commissioners forced upon Florida electors whom the State had re- 
jected when she made her own choice, and against whom all the de- 
partments of her government had protested. The fraudulent nullity 
manufactured by two canvassing officers was allowed to outweigh the 
will of the State, as expressed by her executive, her Legislature, and 
her courts, as well as the solemn voice of her people in their pri- 
mary capacity. 

The Commission invested the canvassing officers with judicial au- 
thority, and held that their certificate was the decree of a tribunal. 
It is perfectly certain that by the law of the State the canvassing offi- 
cers have no such power. The act of the Legislature does not give it 
to them, and the Supreme Court of the State had decided in the 
most emphatic manner that their duties were purely ministerial. 

The Commissioners went another step. Two clerks being meta- 
morphosed into judges, contrary to the law of the State, it was next 
maintained that their fraudulent act was as good as an honest judg- 
ment, and this was against the law of the whole civilized world. 

All the questions of law and fact controverted before the Commis- 
sioners, with reference to the vote of Florida, had been adjudicated by 
a State court of competent jurisdiction in a cause between the same 
parties. It was not open to another hearing. But the eight Commis- 
sioners, reckless of their plain duty, or not understanding it, though 
warned by their brethren, made a decision diametrically opposite, and 
the fraud that had been legally crushed was restored to another life. 

It might be possible for a very ingenious man to gloss over these 
anomalous rulings with some appearance of plausibility. But your 
argument only sets them in a worse light. Your weak and awkward 
defense of them will convince any intelligent man who reads it that 
they are wholly indefensible. If the Commissioners were not ashamed 
of their errors before, they must have blushed when they saw them 
supported by such twaddle as yours. 

You are naturally offended by my reference to the conduct of Mr. 
Sherman's visiting committee, of which you were one. You call it 



POLITICAL ESSAYS AND LETTERS. 357 

an attack ; but I meant it for the best defense I was able to furnish : 
and I will not now be provoked to utter one harsh word about them. 
I am willing to admit that, when I said they " aided and abetted, hy 
every means in their poiocr, the perpetration of the Great Fraud," I 
used too strong an expression. 

Their case is too serious to be dealt with lightly. So far as depends 
on me, I will not suffer them to be prejudiced by your blundering ad- 
vocacy. But they have hurt themselves very much by declaring insin- 
cerely and untruly that they went to Louisiana only to loitness the 
count of the electoral vote by the Returning Board. Nobody believes 
that they would drop their affairs at home, start immediately after the 
election, travel all the way to Louisiana, and stay there at great ex- 
pense for a month, merely that they might be present as spectators 
when Wells, Anderson, and the two mulattoes would cypher up the 
returns. No ; they meant business of some kind, good or evil, and 
evil is always suspected of that which covers itself under a sham. 
Another pretense of theirs fails to bear examination. They said they 
could not advise an honest count or reprobate a false one without fear 
of offense to the returning officers. This extreme delicacy is all simu- 
lated. Nothing could be more ridiculous than the idea that the com- 
mittee was restrained by jjoliteness from interfering to stop the fraud, 
if they wanted it stopped. They could have crushed it with a word. 
If they had simply said that an honest count must be made of all the 
legal votes actually cast, and that no man should, with their consent, 
be recognized, protected, or rewarded for falsifying or fraudulently 
altering returns, the conspiracy would have dissolved that instant. 
Their refusal to do this or something equivalent, when pressed and 
solicited by the Democratic committee, needs to be vindicated by some 
better reason than any that has yet been given. 

They not only did not prevent the Great Fraud when they might 
have done it so easily, but they encouraged it, intentionally or uninten- 
tionally, by telling the conspirators that power to disfranchise the 
citizens of the State might constitutionally be exercised by the Return- 
ing Board ; and to give this plausibility they cited a void statute and 
a decision of the Supreme Court which had never been made. By 
reasoning wholly unsound they made the conspirators believe that if 
they put their fraud into the "forms of law," it could never be ques- 
tioned. 

Moreover, after the fraudulent alteration of the vote had been 
made, they pronounced it a righteous thing. How far they were con- 
scientious in this, I do not pretend to say. But if a man approves of 
a consummated crime, it does not require much faith in human weak- 
ness to believe that he might have helped it along while it was yet in 
fieri. 

Again : the chairman of the visiting committee has since become 



358 POLITICAL ESSAYS AND LETTERS. 

Secretary of the Treasury, and controls the appointment and remoyal 
of custom-house officers at New Orleans as well as elsewhere. Wells 
is Surveyor of the Port, and Anderson is Deputy Collector. Are these 
offices the consideration, in whole or in part, of their corrupt service in 
the Eeturning Board ? What other claims to those lucrative and highly 
responsible places could be preferred by this brace of detected criminals ? 

Tliough these facts make an impression very unfavorable to the 
committee, they are but moral circumstances. The public is not yet 
in possession of any direct evidence which shows either of them to 
have actually participated in concocting perjured affidavits, bargained 
for falsified records, or made special promises of reward for corrupt 
services. All of them are men of good general reputation ; most of 
them stand so liigh that a charge against them of willful dishonesty, 
unless supported by overwhelming proof, must be rejected as incredi- 
ble. Some, perhaps, were tied to the tail of the committee who had 
not knowledge enough of the subject to make them fairly responsible 
for what they said or did. You yourself are in no danger if you get 
proper credit for your mental imbecility ; at least I think it can be 
easily shown that great allowance ought to be made for you on that 
score. 

I come now to your abuse of the Buchanan Administration. It is 
as difficult to analyze as the scolding of a fish-woman. But out of 
your reckless and half-crazy circumlocution I am able to extract the 
following charges : 

1. That the President and other members of the Administration 
were in favor of the secession movement, and desired its success. 

2. That to make it successful they, and particularly the President 
himself, behaved treacherously and unfaithfully to the Federal Gov- 
ernment. 

3. That the President combined with secessionists in the treason- 
able plot to break up the Union, establish an independent Southern 
Confederacy, and cause it to be recognized as a separate nation by for- 
eign governments. 

4. That, in pursuance of this plot, and to carry it out, the Presi- 
dent not only abandoned but denied the right of the Government to 
preserve itself or to maintain its authority, or to execute its laws, or 
to put down resistance by force. 

5. That, as a consequence of these and other evil deeds, the Bu- 
chanan Administration became accursed as the cause of the Civil War, 
with all its loss of blood and treasure. 

I will not now write an essay on the history of that period, or go 
into a general explanation of the events which took place on the eve 
of the war. I am wholly on the defensive, and my present duty is 
merely to state certain facts already well known, and which show that 
your charges are false and groundless. 



POLITICAL ESSAYS AND LETTERS. 359 

Mr. Buchanaa's regular message of December, 1860, addressed to 
a Congress in which all the Northern and Southern States were repre- 
sented, is an unanswerable argument against the right of separation, 
and the most powerful appeal for union and harmonious obedience to 
law that ever was made to the American people, excepting, perhaps, 
Washington's Farewell Address and Jackson's Proclamation. No one 
can read it now without feeling that if his wise counsels had been 
heeded, the unity of the Eepublic would have been preserved in the 
bonds of a lasting peace. 

Only those who know, of their own knowledge, what relations 
actually existed between the Administration and the leading advocates 
of separation, can see how preposterous is the charge of a conspiracy 
between tliem. For many Southern gentlemen the President, no 
doubt, had a warm affection which it was not easy to tear from his 
heart ; and their attachment to him had been long and faithful. But 
the moment he assumed his public attitude of opposition to their move- 
ment, tli^y fell away from him in a body and became his unanimous 
enemies, as far as they could be so consistently with their respect for 
his acknowledged personal virtues. Even the Southern members of 
his cabinet could not reconcile it with their principles to hold office 
under him. The great gulf, soon to be filled with blood and fire, was 
already opened. The Administration was on one side of it, and all 
secessionists on the other. Docs that look like a combination to effect 
a common purpose by concert of action ? 

Not less absurdly false is the charge that the Administration denied 
the power of the Federal Government to maintain its just supremacy 
by force. 

AVe held not only that no right of separation existed, and as a logi- 
cal consequence that all State ordinances of secession were mere nulli- 
ties, but we claimed for the Government of the Union the right to 
save its perfect integrity by the use of all the physical force which 
might be found necessary. This power was given by the Constitution 
itself, according to our exposition of it, thus : 

To take or retake and keep possession of all forts, arsenals, dock- 
yards, custom-houses, post-offices, land, and other public property of 
the United States ; to collect the duties, imposts, and taxes wherever 
due ; to execute the laws, by enforcing the judgments of the Federal 
courts, and the legal orders of all Federal officers, and to do this by 
military power wherever the civil authority is not strong enough : 
these are the coercive powers bestowed on the General Government for 
its own preservation, and these, instead of being abandoned by the 
Buchanan Administration, were most distinctly asserted. 

What we did deny was, the right of the United States to make war 
upon a State as a State, declare all the inhabitants beyond the joro- 
tection of law, and put them all to the sword as public enemies, for 



360 POLITICAL ESSAYS AND LETTERS. 

theoretical heresies expressed by a few of them, in the form of void 
ordinances. We thought, as Washington, Madison, and Jackson 
thought and said on similar occasions, that the force which supported 
the law ought to be directed against the individuals who opposed it, 
and not against innocent persons who happened to live in the same 
State. 

The United States, being (within certain limits) a sovereign Gov- 
ernment, to which obedience was due directly from the people, it took 
no notice of State lines, and could not make war upon a State any 
more tlian a State could make war upon a county. The opposite doc- 
trine, which would interpose the State between the people and the 
Federal Government, was the doctrine of the secessionists, which we 
rejected as unsound and heretical. 

If the Executive had at that time opened an indiscriminate and 
aggressive war, it would not only have been lawless murder, but it 
would, as every one now can see, have ended in complete disaster, and 
the cause of the Union must have utterly perished. 

The executive function is confined by the statute-book, as well as 
the Constitution. The President could not, and he said plainly that 
he would not, violate his oath of office by usurping powers which the 
law withheld from him. But Congress could give him all that was 
needed. It did not do so. On the 9th of January he sent in a special 
message, describing the dangers to which the Union was exposed by 
the inaction of Congress, and showing the inadequacy of his means to 
control the rising revolution. Congress would not vote a man or a 
dollar, nor in any way strengthen the executive hand. 

That these views of legal and constitutional duty were true and 
right is not open to the slightest doubt. Except the Southern mem- 
bers who retired, all the Cabinet fully and heartily concurred in them. 
General Cass, General Dix, Mr. Holt, Mr. Stanton, Mr. Toucey, and 
Mr. King were as true to them as I was, and of course supported them 
with much greater ability. We differed several times with one an- 
other and with the President, on points of policy ; but on the law we 
were of one mind and one heart. Our exposition of it was not, to my 
knowledge, thought or said to be erroneous by any member of that 
Congress. Our successors, of the Lincoln Administration, adopted it 
in all its length and breadth. To this day no lawyer of average ability 
has ever fairly considered it and then candidly put in a dissent. It is 
so manifestly correct — so simply just, and right — that all men agree 
to it. 

Such being the true state of the case, as the record shows, you 
assail the Buchanan Administration with filthy abuse, and charge Mr. 
Buchanan himself, not only with entertaining opinions totally differ- 
ent from those he actually held and expressed, but with criminal acts 
of the darkest dye. 



POLITICAL ESSAYS AND LETTERS. 361 

Apart from the palpable falsehood of these accusations, your at- 
tempt to criticise a man like Mr. Buchanan is unpardonably presumpt- 
uous. Your judgment upon his character or conduct, even if hon- 
estly expressed, is not worth a straw. Doubtless he had his share of 
imperfections ; but how could you tell his faults from his virtues ? 
You believe that the fraudulent alteration of election returns to cheat 
a nation is the "exercise of a wise discretion " ; you believe the Louisi- 
ana returning law to be just and constitutional ; you believe it right 
to quote a judicial decision for a principle which the case does not 
contain : how, then, can any moral standard of yours be applied to a 
statesman whose life was upright, pure, and patriotic ? Your faith in, 
and affection for, the carpet-bag knaves makes it a necessity of your 
nature to vilify Buchanan, who was in all things their opposite. His 
intellectual as well as his moral superiority puts you so widely apart 
that you can never know anything whatever about him. I do not 
wish to exaggerate his magnitude or your littleness ; and I could not 
if I would try ; for no comparison of mine can describe the difference 
between you. Hyperion and a satyr ; the towering eagle and the 
mousing owl ; the King of the Titans and the dwarf at his foot ; the 
builder of the solemn temple and the fly on one of its columns — none 
of these trite similes gives an idea of the immeasurable distance which 
separates you from him. Nobody expects the scurvy politician, who 
busies himself fixing up false election returns, to understand the 
thoughts, motives, or acts of the incorruptible magistrate whose walk 
is on the mountain ranges of the law. 

Let us look for a moment at your method of supporting the charges 
you make, and see how worthy it is of you and your carpet-bag associ- 
ates. In substance, your accusations are that he and his Administra- 
tion, being in complicity with treason, favored the right of the States 
to separate from the Union at pleasure, and, in the interest of the 
seceding States, denied the power of the General Government to main- 
tain its authority by force. The message honestly quoted proves ex- 
actly the reverse. But you suppress all that it contains upon those 
subjects, and quote certain sentences relating to a totally different 
matter, namely, the right of the General Government to make aggres- 
sive war upon a State, and all the people thereof, without regard to 
their personal guilt or innocence. Because he shows that the Consti- 
tution has wisely withheld this power from both the President and 
Congress you say that he abandoned and denied the other powers 
which, in fact, he asserted and claimed in that same message. 

I do not ask if this be a fair way to defame a man whom death 
has disarmed of the power of self-defense, for I suppose that, in your 
eyes, it is eminently proper. You have no doubt that it is "a wise 
discretion," like that of AVells and Anderson when they transposed 
the figures on the return from Vernon Parish. The trick, to be sure, 



362 POLITICAL ESSAYS AND LETTERS. 

is perfectly transparent ; but your mental caliber is just small enough 
to let you think that even a detected falsehood is better than none. 

Nor would I advise you to cease your vituperation of the dead 
President. His memory is intensely hated by many powerful persons 
to whom his dignified and virtuous life was a constant reproach. To 
slander him is the surest way to curry favor with them, and they can 
assist you to get a foreign mission, or some other office for which you 
are equally unfit. Lose no opportunity, therefore, of being super- 
serviceable. Take every occasion to load up as much dirt as your little 
cart can carry, and, however far it takes you out of your way, drive 
around and dump it on the grave of Buchanan. It will not disturb his 
repose, and no doubt it will increase your chances of promotion very 
much. 

It is always more or less awkward to speak of one's self. But you 
have dragged my individual life into this discussion, and falsely ac- 
cused me of gross misbehavior. I shall make my defense with as little 
egoism as the nature of the case will permit. 

You have positively averred, published, and proclaimed that I 
adopted the views of the secessionists, and entered into a '^ devilish 
cunning " conspiracy with them to destroy the Union ; that I brought 
the "accursed Administration" into this traitorous combination, ex- 
pressed the opinion that each State had a right to separate from the 
Union at pleasure, and declared the Government destitute of all 
power to preserve itself by compelling obedience to its laws, with much 
more to the same effect. 

To this I oppose my explicit denial. I declare that all you say 
about me in this connection is perfectly and entirely false, not only in 
its general tenor, but in every detail. No act that I ever did, no line 
that I ever wrote, no word that I ever spoke, can give the slightest 
support to any one of your charges. On the contrary, all my utter- 
ances, public and private, are diametrically the reverse of this. 

Up to this point I have been willing to excuse you on the score of 
incapacity. You could not be expected to see the unconstitutionality 
of the Returning Board law, or the legal right of the people to choose 
their own electors, or the dishonesty of altering election returns, or 
the rule that fraud makes void whatever it taints by its touch. In 
quoting the Louisiana court to prove a principle which it did not 
mention, perhaps you only repeated like a parrot what others said 
before, without knowing what it meant. When you asserted the con- 
clusiveness of the Eeturning Board's action on the authority of the 
statute, and a judicial decision, you may have omitted the words 
'' prima facie'' from your rendering of both, because you thought 
that conclusive and prima facie were synonymous terms. You prob- 
ably did not write that part of your article which most falsely accuses 
me of admitting and justifying the murder of innocent and helpless 



POLITICAL ESSAYS AND LETTERS. 363 

people by thousands. All your misstatements upon the Florida case 
could be accounted for by your lack of legal knowledge. Even your 
misrepresentation of Mr. Buchanan might be considered the unavoid- 
able blunder of a narrow mind struggling with a subject beyond its 
comprehension. But this slander of me is a different thing. Giving 
you credit for as much ignorance as you can possibly plead, and mak- 
ing all allowance for the curious moral strabismus with which you are 
afflicted, still judgment must go against you, that here yon have will- 
fully broken the ninth commandment. 

Manifestly you sought most diligently for evidence to show that I 
had been opposed to the Union, favored secession, and advised against 
the right of the Government to execute its own laws. The further 
you went in your search, the more proofs you found to contradict the 
calumny which you had predetermined to utter, and you found abso- 
lutely nothing, for nothing existed, to sustain it. But, true to the 
morality of the Eeturning Board, you resolved to make what you could 
not find. You took my opinion of 20th November, 1860, and there 
you saw an exposition of the subject precisely the opposite of that 
which you wished to impute to me. Then you falsified the record, 
suppressed what I actually wrote, and attributed to me sentiments 
which I never entertained or uttered. Your account of the paper and 
its contents is not only different from, but directly contrary to, all that 
is contained in the paper itself. 

That is bad enough, but that is not the worst of it. In order to 
give some show of authenticity to your false version of my opinion, 
you pretended to transcribe a paragraph ; but your transcript is basely 
fraudulent. Let any man take volume ix of the Attorney-General's 
opinions, look at this one on page 523, and compare your pretended coj)y 
with the original. You pick out sentences here and there from differ- 
ent places, and present them to your readers as if I had written them 
continuously. What you strike out is absolutely necessary to a proper 
understanding of what you leave in. A most serious and embarrassing 
difficulty had been brought upon the Administration by the resigna- 
tion of all the Federal officers in South Carolina. The President, 
anxious to perform his whole duty, required my advice. Of course, I 
did not say that this was casus belli as against the State. "We could 
not lawfully kill the whole population because our officers vacated the 
places to which we had appointed them. Military force might be sent 
there to aid the civil officers in executing the laws, but we must first 
have civil officers to bo aided. For this I gave reasons which any one 
who reads the opinion will perceive to be entirely satisfactory. You 
make me talk nonsense about it ; I seem to propound a question which 
I do not answer ; to describe a difficulty without proposing any relief, 
and to draw a conclusion from no premises. Having thus depriyed 

the passage of its real meaning, you ascribe to it a false one, and assert 
24 



364: POLITICAL ESSAYS AND LETTERS. 

Unit it contains sentiments inspired by "treasonable allies" of the 
Administration "in aid of the great rebellion." 

In law this is not a forgery. But among men of average honesty 
the fraudulent alteration of a paper to injure another's character passes 
for about as shameful and base a thing as can be done. Let me illus- 
trate by cases which I need not say are merely hypothetical : 

Suppose yourself appointed to the mission you have sought so ear- 
nestly. You wish to ruin some man, or woman, by trumping up a false 
accusation against him, or her, and you try to do it by diplomatically 
misrepresenting the contents of a written document which you have 
in your possession and from which you make false quotations ; you are 
detected and exposed : what would be done with you ? All further 
intercourse with you would be declined ; your recall would be imme- 
diately demanded ; you would be kicked out of the country as igno- 
miniously as the rules of international law would permit. 

Imagine yourself in court as a counselor with a paper in your hand 
whose contents it is necessary for you to make known ; you misstate 
the whole tenor and purpose of it ; you pretend to read a part of it, 
but read it so falsely that the true sense of it is altogether obscured. 
If you are caught in the trick you are certain to be expelled from the 
profession. 

Suppose another case : A Federal officer is impeached for being 
engaged in a conspiracy against the Government, and you, being a wit- 
ness, testify positively that he is guilty because you have seen a paper 
written by the accused in which sentiments are expressed favorable to 
the conspiracy and hostile to the right of the Government to execute 
its own laws. Moreover, you produce a copy, made by yourself, of a 
paragraph, which you swear to be plenary proof of an intent to sur- 
render the power of the Union to the conspirators. After that you 
are indicted for perjury, and it is proved that no such sentiment was 
expressed in the paper, but the direct contrary, and that your copy is 
a false copy, palpably made for the purpose of deception : would you 
have a defense ? Could you escape conviction ? If convicted, what 
would become of you ? 

Of course, you have never done either of these supposed acts. I 
put the cases merely to bring the principle down to a level with your 
understanding, and to show you how dangerous is the practice you in- 
dulge in of falsifying documents and misstating their contents. When 
you see how it would work if carried out into other departments of 
business you will comprehend the iniquity of trying to fasten the high- 
est crimes upon innocent persons, dead and alive, by such methods as 
you have adopted. 

As to Oregon, it was not asserted before the Commission that any- 
thing criminal had been committed. The question whether Cronin 
or Watts was elected involved a doubtful and difficult question of law 



POLITICAL ESSAYS AND LETTERS. 365 

on which there were different opinions and judicial authorities seri- 
ously conflicting. That Governor Grover decided it honestly, and ac- 
cording to his best judgment, there can be no doubt in the minds of 
reasonable and fair-minded men. The presumption that he acted with 
all due fidelity to the law is much strengthened by your assertion that 
he was guilty of "loathsome fraud." Your abuse of any man is very 
powerful evidence in his favor. 

In like manner I take your diatribe upon Mr. Tilden and the New 
York Democracy. I know nothing of the matters you refer to ; but 
I do not believe a word you say. Remembering your monstrous false- 
hoods about Mr. Buchanan ; seeing the large, loose, and lavish men- 
dacity of your charges against myself, and applying the maxim, falsus 
in uno falsus in omnibus, I can only regard your abuse of Mr. Tilden 
as strong proof that be is a just, upright, and honorable gentleman. 
Thus you furnish me with a cheap and easy mode of praising him. 
The chosen chief of the nation swindled of his right does not want 
any eulogy from me. But if I am called upon to show the grounds 
of his title to general respect and admiration I need not describe the 
irreproachable walk of his private life or his high public career — his 
brilliant eloquence or his solid judgment — his tireless struggle against 
corruption in the city of New York, or his beneficent administration of 
the State government — it is enough that I simply show your attempt 
to defame him ; for that itself is a decoration of his character. 

Your fling at Messrs. Field and Carpenter is hardly worth notice. 
Far as they stand above your reach, you attempt to malign their mo- 
tives for opposing the Great Fraud ; those of one you pronounce to be 
mercenary, and of the other "mixed and mysterious." They belong 
to a class of men who act habitually upon motives which must always 
be a mystery to you, for you can not comprehend them. You chuckle 
over the fact that their logic and eloquence was unsuccessful. That 
is proper enough. 

The decision of the Commissioners gave to stupidity and fraud a 
great triumph over the honesty and ability of Messrs. Field and Car- 
penter, and in this triumph you have an unquestioned right to rejoice. 
You add that " their joint effort before the Commission was a not in- 
efficient aid in preparing the minds of their auditors for the judicial 
result which followed." This seems to mean that, either from lack of 
faithfulness or want of capacity, they injured their cause by pleading 
it. But you would scarcely presume to pronounce such a judgment 
on men whose superiority over yourself is so marked and so well known. 
One other construction of your words is possible. The Commissioners 
were the auditors, and their minds were prepared to decide in favor of 
the fraud by the mere fact that Messrs. Field and Carpenter, Republi- 
can lawyers, appeared in opposition to it. Did the Commissioners 
indulge a feeling so unworthy ? Did they prostitute their judicial 



36G POLITICAL ESSAYS AND LETTERS. 

functions to satisfy it ? Certainly no reasonable man can ever believe 
that, without authority much better than yours. But most probably 
you had no meaning at all. It is mere drivel, and only furnishes an- 
other proof that, when your masters at Washington intrusted you with 
the defense of tlie Great Fraud, they put the business into most incom- 
petent hands. -^^ 



THE THIRD TERM: REASONS AGAINST IT. 

^* Resolved, That in the opinion of this House the precedent estab- 
lished by Washington and other Presidents of the United States, in 
retiring from the presidential office after their second term, has be- 
come, by universal consent, a part of our republican system of govern- 
ment, and that any departure from this time-honored custom would 
be unwise, unpatriotic, and fraught with peril to our free institu- 
tions." 

This is a resolution passed by the House of Representatives on the 
15th day of December, 1875. It was offered by Mr. Springer, of Illi- 
nois, after consultation with leading friends of the principle, and was 
carried immediately and almost unanimously, being opposed by the 
votes of only eighteen members out of two hundred and fifty-one. It 
received the support and approbation of all parties. Men who quar- 
reled bitterly upon all other political subjects were of one heart and 
one mind when it came to be a question whether the custom estab- 
lished by Washington and other Presidents, of retiring after their 
second term, ought to be respected or could be safely departed from. 

And now here, to wit, in the pages of this Review, comes Mr. 
Howe, of Wisconsin, and on the part of General Grant, for whom he 
appears, denounces the resolution aforesaid, impugns the doctrine em- 
bodied in it, and assails the integrity of its supporters in the most 
violent manner. lam asked, " Under which king, Bezonian?" Do 
I give in my concurrence ? If not, what grounds of opposition can I 
presume to stand on ? Believing in the resolution of the Represent- 
atives, and dissenting from Mr. HoWe's article, the readers of the 
Review shall have the why and the wherefore : not because my indi- 
vidual opinions are worth a rush, but because, on a subject so impor- 
tant, truth is entitled to every man's defense ; because this faith is 
shared, in our time, by the most respectable citizens of all classes ; and 
because it is delivered to us from a past generation, strongly stamped 
with the approbation of the best men that have lived in all the ages. 

A President of the United States may legally be elected and re- 
elected for an indefinite number of terms ; there is nothing in the 
Constitution to forbid it ; but the two-term precedent set by Washing- 



POLITICAL ESSAYS AND LETTERS. 367 

ton, followed by his successors, consecrated by time and approved by 
all the public men of the country, ripened into a rule as efficient in its 
operation as if it had been a part of the organic law. A distinguished 
and very able Senator of the Grant party, who had carefully inquired 
into the state of popular feeling, told me in 1875 that the sentiment 
which opposed a third term was stronger than a constitutional inter- 
dict ; the people would more readily assent to a breach of positive law 
tcxtually inserted into the Constitution than to any disturbance of an 
unwritten rule which they regarded as so sacred. 

Certainly it was adhered to by all parties, with a fidelity which 
some of them did not show to the Constitution itself, down to 1875, 
when the first attempt was made to contravene it by putting up Gen- 
eral Grant for a third election. This was everywhere received by the 
rank and file with mutterings of mutiny, and the most devoted par- 
tisans responded with curses, which if not loud were deep. The move- 
ment, as Mr. Howe tells us, was met by solemn warnings from the 
newspaper press, by strong protests from political conventions, and 
finally by the resolution quoted at the head of this article, which was 
a rebuke so overwhelming that the supporters of the third-term candi- 
date fled from him in fear, deserted him utterly, and left him without 
a single vote in the nominating convention of his own party. 

Mr. Howe has no doubt that tliis resolution was the sole cause of 
Grant's defeat in 1876. He is equally certain that it was all wrong. 
He gives the Republicans who supported it no credit for sincere belief 
in the principle they professed. He says they were not " brave and 
conscientious" enough to ''stake the post-offices" on Grant's elec- 
tion ; he charges that they were moved only by a base and dishonor- 
able dread of losing the spoils when they abandoned their chief in- the 
midst of his struggle. It is not for me to say whether this imputa- 
tion of cowardice and dishonesty is or is not a slander on the Eepubli- 
cans, but I think I know a good many of the gentlemen accused Avho 
are at least as brave and conscientious as Mr. Howe himself. It is 
doubtful if even the contractors and office-holders under General 
Grant were quite so godless a crew as Mr. Howe represents them to 
be. 

However that may be, the present intent of Mr. Howe is to rally 
the routed third-termers, and restore the courage of the recreants by 
the assurance that the jobs and offices are safe, after all. To that end 
he tells them that their panic was caused by a ''spook," they were 
frightened by a "strange fulmination," they were "scared by a sense- 
less clamor," and by "reiterated vociferations," and the Springer res- 
olution, he says, was "a champion piece of charlatanry enacted in 
the House of Representatives." This is loud calling to the fugitives, 
and perhaps it may bring some of them back. But it proves nothing 
against the Springer resolution, and to destroy the effect of it is the 



368 POLITICAL ESSA YS AND LETTERS. 

task whicli Mr. Howe has set himself. His ultimate design is to elect 
General Grant, and no true lover of American liberty can vote for 
Grant with a safe conscience, if he believes that a departure from the 
Washington precedent is ''fraught with peril to our free institutions." 
For this sufficient reason, and with this end in view, Mr. Howe goes 
seriously about the work of blackening the character of the Springer 
resolution and bringing it into public infamy, contempt, and hatred. 

He makes /owr specific and distinct charges against the resolution, 
and avows that the aim and intent of his article is to make these 
charges good. He "thunders in the index" and opens upon the reso- 
lution with these appalling threats : 

It is, therefore, the purjDOse of this article to show that in those 
few lines quoted from the Journal of the House of Representatives 
are comprised — (1) a grave impeachment of the Federal Constitution ; 
(3) a gross libel upon its framers; (3) a base counterfeit of our politi- 
cal history ; and (4) a wanton insult to our common sense.* 

These are grave accusations. If the resolution is guilty of all this, 
it ought to be not only expunged, but cut out of the record and 
burned by the common hangman. It is worth while, therefore, to 
see whether Mr. Howe's arguments and proofs do accomplish the de- 
clared purpose of his article : 

I. I am not sure that I know what he means by impeachment of 
the Constitution. He certainly does not mean the violation of it. 
The wildest orator on a Western stump would not say that we are 
commanded by the Constitution to elect the same person three times. 
Mr. Howe himself goes no further than to say that the Constitution 
''clearly permits it." He has some misty and confused idea in his 
head that we dishonor the Constitution, or fly in the face of it, if we 
fail to do whatever it does not forbid, " The fundamental law," he 
says, " puts no limit to the number of terms for which the people may 
elect the same man to the presidency," and from this proposition he 
jumps to the conclusion that the Constitution is impeached (whatever 
that may mean) when the representatives of the people affirm the 
danger and impropriety of giving more than two terms to the same 
person. A gentleman who has occupied the seat of a Senator in Con- 
gress ought to know that the Constitution "clearly permits" many 
things which, nevertheless, ought not to be done. Without encounter- 
ing any prohibition, we might make the criminal code as bloody as 
that of Draco ; or keep a standing army of half a million of men in 
time of peace ; or starve labor by taxation to stuff capital with boun- 
ties. But is it any impeachment of the Constitution to say that such 
measures would be " unwise, unpatriotic, and fraught with peril to our 
free institutions " ? 

* The parenthetic numerals are mine. — B. 



POLITICAL ESSAYS AND LETTERS. 369 

Mr. Howe alleges loudly, learnedly, and with great solemnity, that 
General Grant was eligible in 1876, and is now eligible — that is to say, 
capable of being elected notwithstanding his two previous elections. 
To show this he has spread himself over many pages of dreary and 
commonplace writing. His success is perfect, if success it can be 
called to prove what no human being in the world ever thought of de- 
nying ; but from this conceded truth, so elaborately set forth, he 
draws the absurd inference that we can not refuse to elect him with- 
out an impeachment of the Constitution. This kind of logic, if we 
adopt it, will lead to curious consequences. H one citizen must be 
elected because he is eligible, what are we to do with the millions of 
others who are equally eligible ? We can not elect every male native 
over thirty-five years of age ; but, if we do not make them all Presi- 
dents at once, we impeach the Constitution, which provides that any 
one of them may be chosen. The Constitution " clearly permits " us to 
elect a third-term candidate or a new man ; but, if permission implies 
obligation, we violate duty by rejecting one as much as the other. 
The fifteenth amendment makes an African eligible ; therefore we 
impeach the amendment every time we elect a white man, and we 
impeach the original instrument if we choose a negro ; " either way 
we're sped." 

The logic of Mr. Howe will apply to State officers and to subor- 
dinate officers of the United States with as much force as to the Presi- 
dent. Mr. Robinson was Governor of New York, a candidate for re- 
election, and clearly eligible ; his defeat was, in the opinion of many 
good men, most improper, unwise, and unpatriotic, but neither his 
friends nor his enemies thought the Constitution impeached by the 
election of his competitor. Mr. Howe was a Senator, and when his 
term expired he was anxious above all things to be re-elected, but for 
some reason, of which I know nothing, he was rather badly beaten. 
He himself may have believed that the Legislature of Wisconsin im- 
peached the Constitution when it chose Mr. Carpenter in his place, 
but it is very certain that nobody else did. 

The friends of a third term may complain that I am taking an 
unfair advantage of Mr. Howe's loose language. Perhaps his meaning 
may be more precisely expressed thus : The Constitution permits the 
same man to be elected three times or of tener ; the Springer resolu- 
tion declares it unwise, unpatriotic, and dangerous to elect any one 
more than twice ; and this is an impeachment of the Constitution, 
because, in effect, it affirms that the Constitution '^ sanctions an act 
malevolent in its tendencies." But, after all the help we can give him 
in stating and restating his view, it remains as preposterous as ever. 
The Constitution leaves to the people an unlimited discretion in the 
choice of their Chief Magistrate. To any man's pretensions they have 
a legal right to say no as well as yes. They and their representatives 



370 POLITICAL ESSAYS AND LETTERS. 

may certainly deliberate and determine how that discretion shall ho 
exercised, and to put their decision into the form of a general rule or 
political principle which will exclude classes of men from their favor 
as well as particular individuals. Thus we might resolve against the 
propriety of electing a drunkard or a gambler, though there is nothing 
in the Constitution which makes a sot or a blackleg ineligible. The 
Constitution '' clearly permits " one who is or has been an officer of the 
army to be made President ; but, when General Jackson was a candi- 
date, all the anti-Democrats of that day resolved and re-resolved that 
the election of a military chieftain would be not only unwise, unpatri- 
otic, and dangerous, but a calamity to the country worse than war, 
pestilence, and famine combined. This was false, no doubt, but it 
was not suspected then or since of being an impeachment of the Con- 
stitution. All, or nearly all, citizens of the South who fought for 
their "lost cause" are eligible to the presidency, but Mr. Howe would 
concur without hesitation in a resolution declaring the election of a 
Confederate brigadier *' unwise, unpatriotic, and fraught with peril 
to our free institutions," and it would never strike him that he was 
thereby impeaching the Constitution ''which sanctions an act so ma- 
levolent in its tendencies." 

This allegation that the Constitution has been impeached is so weak 
and so shallow that it Avould not deserve refutation if it were not the 
main objection of the leading third-termer to a wise and salutary rule, 
established by the fathers of the republic, and concurred in by all par- 
ties of the present day ; for this two-term rule is not only recom- 
mended by its intrinsic soundness, it is orthodox according to St. 
Augustine's definition of orthodoxy : " Quod uhique, quod semper, 
quod ah omnibus creditum est.^' That which is believed to be right 
everywhere, always, and by all persons, must be defended by the faith- 
ful even against the puniest assaults of interested and ill-natured 
schismatics. 

II. It is asserted, in the second place, that the resolution of Con- 
gress is a gross libel upon the framers of the Constitution ; that is to 
say, it slanders the character of the men who made the Constitution, 
and maliciously injures or attempts to injure their good repute. 

Who are the "framers" wronged by this "gross libel" ? General 
Washington, " the foremost man of all this world," presided at their 
deliberations, and, next after Washington, the most conspicuous mem- 
ber of the body was Madison, who took so large a part in framing the 
Constitution that he has ever since been called the father of it. These 
two illustrious men afterward became President under the Constitu- 
tion which was the work of their hands. Although they were not 
required to lay down their charge at any specified period of their ser- 
vice, yet both of them did voluntarily retire after serving two terms. 
During all their subsequent lives they were followed by the approving 



POLITICAL ESSAYS AND LETTERS. 37l 

benedictions of their countrymen ; and their graves are hallowed 
ground. They rested from their labors, and their righteous works did 
follow them, time-honored, through later generations. 

When the Romans desired to honor a deceased benefactor, they 
went up to the Capitol and publicly crowned his statue with laurels ; 
the Eepresentatives of the American people, in December, 1875, did 
for Washington and Madison what was more than equivalent — they 
solemnly and with one voice commended their example as worthy 
of all imitation. This commendation, expressed in language imply- 
ing love and admiration as perfect as could be on this side of idolatry, 
is what Mr. Howe calls a gross libel on them and all the framers of the 
Constitution ! Can the absurdity of mortal man go further ? 

III. Besides this, the resolution, according to Mr. Howe, is a hase 
counterfeit of our political history. Here ho takes mo entirely out of 
my depth. I can not form the remotest conjecture of what he would 
be at. I have fairly tried to comprehend him, but I give it up. Con- 
gress expressed its belief in a certain political principle or rule of 
action, and Mr. Howe calls the expression a counterfeit of history ! 
When an ex-Senator undertakes to be a public teacher, his utterances 
ought to have some kind of meaning in them ; but this appears to be 
mere "sound and fury signifying nothing." 

IV. He has another objection to the resolution : he says it is an 
insult to our common sense. This is the ordinary style of a disputant 
who knows he is angry but does not know why ; it is the usual explo- 
sion of rage without reason ; it was Mrs. Moriarty's objurgation uiDon 
O'Connell when he told her the fish was not sound ; it is the common- 
est kind of scolding, for which there is no answer and no punishment 
except the ducking-stool. 

It was the express purpose of Mr. Howe's article to show these 
four allegations against the Springer resolution to be good and true. 
He has ignominiously failed at all points, and therefore the article 
itself is such a manifest abortion tliat it might be allowed to pass with- 
out further notice. But he has other arguments for a third term. 
They are not true or powerful or even plausible, but they are curious 
enough to invite attention and, perhaps, to reward examination. 

From the conceded fact that the Constitution does not forbid re- 
election, he reasons that in practice re-elections should go on Avithout 
limit ; and he thinks he strengthens this argument if he shows that 
re-eligibility was a part of the plan very much favored by the men 
who framed and adopted it. Therefore he says : " No one idea was 
so prominent or so universal in the Constitutional Convention as this : 
Presidents must le re-eligible.^^ He emphasizes this in screaming 
italics, and follows it immediately by citing at great length certain 
proceedings of the Convention — votes, speeches, reports, and proposi- 
tions — which, instead of supporting, flatly contradict the assertion 



372 POLITICAL ESSAYS AND LETTERS. 

with which he started out. They prove incontestablj that in fact and 
truth there was no one idea about which there was so much difference, 
doubt, hesitation, and change of mind. The idea, supjDorted for a 
long time, and with great firmness, by a large majority, was exactly 
the reverse. That Presidents must not be re-eligible — never at all — 
but confined strictly to one single term, was a proposal not only made 
and debated, but adopted and carried time and again, though earnestly 
opposed by Gouverneur Morris, Eoger Sherman, and Eufus King. It 
was not until the close of the Convention, the last day but one before 
its final adjournment, that the present plan of choosing the President 
by electors coupled with re-eligibility was agreed to. And all this is 
made manifest by Mr. Howe's own citations from the debates and jour- 
nals. Other partisans before now may have been as reckless in asser- 
tion as ho ; but I am not aware that any one has so incontinently re- 
futed himself. 

He says: "The records of that great debate do not preserve the 
name of a single man of judgment so debauched as to object to the 
re-eligibility of Presidents, if only the choice could be preserved from 
legislative control." Here he measures his words with a caution he 
does not often use. He wishes it to be understood that the only oppo- 
sition to re-eligibility was grounded on the mode of election by the 
Legislature, and to make this impression he declares that no other ob- 
jection was urged in the debate which took place while legislative 
election was a part of the plan. This can be contradicted only at the 
expense of examining all the speeches. But it is not worth a contra- 
diction ; for the allegation, even if true literally, is substantially false. 
That was not the only nor even the principal objection. There was a 
general desire to limit the time during which the office might be held 
by the same person, irrespective of the mode in which he should be 
elected. Nobody — certainly no undebauched man of that day — pro- 
fessed a wish to see the executive power in one hand continually. 
They were founding a free republic, to last not for a day, but for all 
time, and they knew very well that a republic with executive power 
and patronage perpetually wielded by the same person would soon 
cease to be a republic either in form or in substance. That this Avas 
the general if not universal sentiment, is shown by the specific declara- 
tions to that effect of the most eminent and best informed among 
them, and by the practical action of all in the formation of their State 
governments, Avhich uniformly provided for short limitations upon 
the tenure of their principal magistrates. Besides all this, here is 
another fact which Mr. Howe ought to have known, but probably did 
not — namely, that the objection to re-eligibility was kept up after 
the present mode of election had been agreed to and settled : New 
York proposed that the President should not be eligible a third time ; 
Virginia and North Carolina expressed their wish that he should be 



POLITICAL ESSAYS AND LETTERS. 373 

made incapable of serving more than eight years in any term of six- 
teen. 

Mr. Howe's allegation on this point is true so far, and so far only, 
that the opponents of re-eligibility ceased their determined struggle 
against it when the present plan of electing the President became a 
fixed part of the Constitution. Their fears were in a great measure 
quieted when the power to control the choice was taken away from the 
Legislature and put into the hands of electors appointed by the 
States ; for that was virtually leaving it to the people, and the people, 
under the great chief who had led them through the perils of the 
Revolution, and surrendered his commission at the close of it, could be 
trusted to act rightly without being bound up by express legal obliga- 
tion, Washington, first in the hearts of his countrymen, would cer- 
tainly be first in the administration of the new Government, and sure 
to set an example which none of his successors would ever dej^art 
from. The event justified their faith. "Washington was the first 
President. He was elected and re-elected unanimously. No name 
could stand for a moment before the competition of his. But at the 
end of his second term he retired to private life. This gave the 
crowning glory to his character, called forth the plaudits of the civil- 
ized world, and all men with joint acclamation agreed that nothing in 
his great public career became him better than the ending of it. 
Those who succeeded him did likewise, and strengthened the author- 
ity of his example by repeating it. So it came to pass that no Presi- 
dent who reached a second term, from the organization of the Gov- 
ernment to. the centennial year of Independence, asked for a third 
term, or suffered himself to be named as a candidate again. 

But in Mr. Howe's estimation all these examples go for nothing. 
Nay, they are accounted Avorse tlian nothing ; in his opinion they are 
pernicious and fit only to be the cause of senseless clamor and popular 
panic. His manner of depreciating the value of the precedents and 
belittling the characters of the men Avho set them is Avorth looking at. 

He argues that Washington's conduct in retiring ought not to be 
imitated, because his reasons were " not patriotic," but personal. 
Washington had an intense desire for the rural tranquillity of Mount 
Vernon, and Mr. Howe cites against him his passionate declaration, 
that he '' would rather be on his farm than be made emperor of the 
world." A man of such sentiments, Mr. Howe thinks, ought not to 
influence the behavior of another who has no taste for agriculture ; 
and he professes his total inability to see why the refusal of a third 
term by Washington, who did not want it, should be quoted nearly 
a century later agamst Grant, who does want it very much. Wash- 
ington longed to lay aside the trappings of power, " which galled 
him while they glittered " ; but why should that balk the ambition of 
Grant, who would gladly wear them for life ? 



374: POLITICAL ESSAYS AND LETTERS. 

Popular veneration for the men who built up our institutions is 
the strongest support for the institutions themselves. It is not only 
a great good intrinsically, but also the motive principle to other 
virtues Avhich are indispensable in a government like ours. Any- 
thing, therefore, which unjustly detracts from their reputation is a 
grievous public injury. This applies most especially to Washing- 
ton, who is acknowledged, not only by us, but by every nation, 
tongue, and kindred under heaven, to have been incomparably the 
greatest man that any country ever produced. An indecent criticism 
upon him shocks and shames us like blasphemy. Nevertheless, we 
would not abridge the liberty of speech. A raging third-termer has as 
good a right to sneer at the Father of his Country as an independent 
Hottentot has to beat his mother. But Mr. Howe's censure of the 
Washington precedent is based upon a false morality. It supposes 
that the virtuous act of a public man is ;iot to, be imitated if the doer 
took pleasure in it ; it may be treated with total contempt by any 
successor whose personal inclinations are averse to it. This leaves no 
distinction between right and wrong, except what is made by the pas- 
sions and interests of each individual. Cincinnatus assumed the dic- 
tatorship of Eome at the urgent call of his country, drove away the 
Gauls and relieved the city from its imminent danger as rapidly as 
possible ; then, laying aside the lictors and the fasces, and the curule- 
car, and the purple robe, he hastened immediately home to his plow- 
ing, which he had reluctantly left unfinished. By the influence of 
this example the Eomans were saved from slavery a score of times, and 
their liberties were finally lost by disregarding it ; but, according to 
Mr. Howe's notion, it was not binding on any subsequent dictator, un- 
less he was, like Cincinnatus, particularly fond of plowing. Very 
probably the sycophants of Marius and Sylla and Caesar presented to 
them exactly this view of the subject. General Grant may accept 
it at the suggestion of Mr. Howe, but the American people will 
hardly believe that a point has been made against AVashington 
strong enough to do the cause of third term much good. 

Mr. Howe -appears to be under the erroneous imjiression that 
Mr. Adams the elder was twice elected ; but, inasmuch as nobody 
asked him to be a candidate for a third term, his example " furnishes 
no more sanction to the Springer resolution than does the example of 
Mr. Washington." Mr. Howe's habitual want of precision may ''some- 
times make him seem to be ignorant when he is not ; but, if he had 
known that Mr. Adams was defeated when a candidate for a second 
term, and, therefore, could not possibly be cited as an example for or 
against a tliird term, he would certainly have spared us the irrelevant 
and pointless assertion that the examples of Adams and Washington 
are alike worthless as a sanction to the doctrine which favors retire- 
ment after a second term. 



POLITICAL ESSAYS AND LETTERS. 375 

Jefferson also comes under review. His precedent, whether good 
or evil, is at least " to the purpose." In letters addressed to the Leg- 
islatures of Vermont, New Jersey, and Pennsylvania, dated on the 
10th of December, 1807, and printed in the "Aurora" at Philadel- 
phia on the 19th of the same month, he solemnly and publicly an- 
nounced to the country that he would not disregard the precedent of 
his illustrious predecessor by accei)ting another election. His reasons 
are brief, simple, and clear, like all the productions of that master- 
hand, and expressed in language so transparently truthful and digni- 
fied that no man of rightly constituted mind can read the paper 
without being stirred by the strongest emotions of respect and admira- 
tion for its author. ' It compresses into a few sentences all that needs 
to be said in favor of the two-term limitation, and is at the same time 
a perfect answer to all objections. Mr. Howe is fair enough to take a 
passage from it and incorporate it with his article ; it shines there like a 
piece of solid gold set in a shapeless mass of lead. Confined as I am 
in time and space, and unnecessary as it may seem, I can not resist 
the temptation to adorn my own page by quoting entire the letter of 
which Mr. Howe has given a part. In these times, when the subject 
is up for renewed consideration, this letter should be read again and 
again; every citizen ought to have it by heart and teach it to his 
children, write it on the lintels of his door, bind it as a frontlet be- 
tween his eyes, and make it the subject of his meditation day and 
night : 

December 10, 1807. 

To the Legislature of Vermont. 

I received in due season the address of the Legislature of Vermont, 
bearing date the 5th of November, 180G, in which, with their appro- 
bation of the general course of my Administration, they were so good 
as to express their desire that I would consent to be proposed again to 
the public voice on the expiration of my present term of office. En- 
tertaining as I do for the Legislature of Vermont those sentiments of 
high respect which would have prompted an immediate answer, I was 
certain, nevertheless, they would approve a delay which had for its 
object to avoid a premature agitation of the public mind on a subject 
so interesting as the election of a Chief Magistrate. 

That I should lay down my charge at a proper period is as much a 
duty as to have borne it faithfully. If some termination to the serv- 
ices of the Chief Magistrate be not fixed by the Constitution, or sup- 
plied by practice, his office, nominally for years, will in fact become 
for life ; and history shows how easily that degenerates into an inher- 
itance. Believing that a representative government responsible at 
short periods of election is that which produces the greatest sum of 
happiness to mankind, I feel it a duty to do no act which shall essen- 
tially impair that principle ; and I should unwillingly be the person 
who, disregarding the sound precedent set by an illustrious predecessor, 
should furnish the first example of prolongation beyond the second 
term of office. 



376 POLITICAL ESSAYS AND LETTERS. 

Truth also requires me to add that I am sensible of that decline 
which advancing years bring on, and, feeling their physical, I ougbtnot 
to doubt their mental effect. Happy if I am the first to perceive and 
to obey tbis admonition of nature, and to solicit a retreat from cares 
too great for the wearied faculties of age. 

For the approbation Avhich the Legislature of Vermont has been 
pleased to express of the principles and measures pursued in the man- 
agement of their affairs, I am sincerely thankful ; and should I be so 
fortunate as to carry into retirement the equal approbation and good- 
will of my fellow citizens generally, it will be the comfort of my fu- 
ture days, and will close a service of forty years with the only reward 
it ever wished. 

Tavo days after the publication of the foregoing letter, to wit, on 
the 21st of December, 1807, he wrote to the Appomattox Association 
(Baptist) thus : 

Believing that a definite period of retiring from this station will 
tend materially to secure our elective form of government, and sensi- 
ble, too, of that decline wiiich advancing years bring on, I have felt 
it a duty to withdraw at the close of my present term of office ; and 
to strengthen by practice a principle which I deem salutary. That 
others may be found whose talents and integrity render them proper 
deposits o'f the public liberty and interests, and who have made them- 
selves known by their eminent services, we can all affirm of our 
personal knowledge. 

February 3, 1808, he told the citizens of Philadelphia, in town- 
meeting assembled : '' Your approbation of the motives for my retire- 
ment from the station so long confided to me is confirmation of their 
correctness. In no office can rotation be more expedient ; and none 
less admits the indulgence of age." 

On the IGth of the same month he said to the citizens of Wilming- 
ton, Delaware : "It is a consolation to know that the motives for my 
retirement are approved ; and, although I withdraw from public func- 
tions, I shall continue an anxious spectator of passing events, and offer 
to heaven my constant prayers for the preservation of our republic, 
and especially of those its best principles which secure to all its citi- 
zens a perfect equality of rights." 

Similar expressions are scattered all through his correspondence as 
long as he remained in office, and after he retired to Monticello he 
continued to repeat tbem. His conviction deepened, as the years 
rolled on, that the principle of two terms was tlie only safe one, and 
he constantly expressed his gratitude for the universal approval of his 
conduct in adopting it. 

How is this met by the late Senator from AVisconsin ? Mr. Jeffer- 
son's reasons for retiring are opposed by objections none of which rises 
to the dignity of a quibble. The best specimen of hypercriticism that 
can be selected from among them is embodied in the charge that Mr. 



POLITICAL ESSAYS AND LETTERS. 377 

Jefferson's declination deprived the jieople of the right to choose wliom 
they would for President. The very words of the article are these : 
*'The people had not free choice, but restricted choice, and tiieir free- 
dom was impaired by the act of Mr. Jefferson." If this oracular judg- 
ment be correct, we must take it hereafter as settled law that whoso- 
ever declines being a candidate for the presidency commits a crime 
against the freedom of elections. 

Nevertheless, Mr. Howe is constrained to acknowledge that Mr. 
Jefferson's "reasons are satisfactory." Still, he is not satisfied. Hav- 
ing demolished General Washington, he does not think it well to let 
Mr. Jefferson stand. Therefore he sets about the serious work of mak- 
ing Jefferson altogether infamous. He avers (in his own loose way, 
of course, but still intelligibly enough) that Mr. Jefferson was an im- 
postor, utterly faithless and insincere through all this business ; that, 
so far from wishing to retire, according to the precedent he professed 
to believe in, he was actually a busy candidate for a third term ; that 
he engaged for thirteen months in an active canvass to get himself 
elected ; that there was a Jefferson boom in which Virginia, his own 
State, obstinately refused to join ; that he gave up tlie chase only 
when he found himself beaten by Madison, and then lie falsely pre- 
tended that he did not want a third term ; that his tardy declination 
was merely an attempt to frame his disappointment into a law Avliich 
should prevent any of his successors from serving longer than he did. 
From these premises, if they were true, the conclusion would be natu- 
ral and just that a precedent made or a practice established by Jeffer- 
son deserves only the disdain of honest people. 

But every well-informed man in the country, except Mr. Howe, 
knows this whole accusation to be false in every point and circum- 
stance. Mr. Jefferson never sought a third election, or engaged in 
any canvass with that object, or expressed by act or word any de- 
sire to be chosen again. On the contrary, Mr. Madison, then his 
Secretary of State, and always his devoted friend, was a candidate with 
his fullest approbation, and received from him all the support which 
he could becomingly give. The charge now made, that he was un- 
faithful to his friend, his country, and his own expressed convictions 
of public duty, is unsupported by a single spark of evidence. Mr. 
Howe's belief in it pretends to rest on nothing except the naked and 
solitary fact that Mr. Jefferson published his declination, and gave the 
reasons for it, only a year before the election at which his successor 
was to bo chosen, although one of the addresses on the subject (that 
from the Legislature of Vermont) was dated a year previous. This 
has not the slightest tendency to prove it, or even to suggest a sus- 
l^icion of it, in the mind of any fair man who considers how many and 
how proper might be the reasons for delicate silence about everything 
concerning the presidential election of 1808 until the State elections 



878 POLITICAL ESSAYS AND LETTERS. 

of 1807 were overpassed. But the charge becomes a scandal and a 
shame Avhen we look at Mr. Jefferson's own explanation of his delay, 
as given in that part of the Vermont letter which Mr. Howe has not 
published. It is worse still — it is an outrage upon truth — when it is 
seen to be inconsistent with every material fact which the history of 
the time discloses. 

This is a fresh calumny upon Jefferson — the latest of many thou- 
sands. I do not impugn the personal veracity of Mr. Howe when I 
say that his party, at all times and under all of its many names, has 
taken a fierce delight in defaming the great Apostle of Democracy. 
\i has not forgivenf and it will never forgive him, for maintaining the 
rights of the States and the liberties of the people, while he preserved 
the powers of the General Government in their whole constitutional 
vigor. It seems a useless labor to vindicate him ; for the enemies of 
the free system which he did so much to sustain are continually re- 
viving old slanders or fabricating new ones. The spider, whose web 
is broken by the broom, invariably reconstructs it or spins another 
from his bowels : 

" Destroy his fib or sophistry — in vain ; 
The creature's at its dirty work again." 

But Madison also adopted the principle of his two predecessors, 
and retired at the end of his second term. Can nothing be urged 
against the Father of the Constitution to depreciate his authority or 
make his example worthless ? "Was not he also unpatriotic and selfish- 
ly fond of his farm ? This could be easily said, and is not harder 
to believe of him than of Washington. The charge might also be 
made that he was an actual candidate for a third term, declining only 
upon the failure of a Madison boom ; and history would not contra- 
dict it more emphatically than it contradicts the story of Jefferson's 
boom. But not a word have the third-termers to say about him in 
the way of detraction, except that he is libeled by the praise of Con- 
gress. Except for that, we are graciously permitted to take his pre- 
cedent and follow it with respect undiminished. 

And there was Monroe, apparently "so clear in his great office" 
that rivalry itself shrunk from his presence, and he was elected a sec- 
ond time without effort, without opposition, without one vote against 
him. Is it nothing to the purpose that he acknowledged the value of 
the Washington precedent ? Concede that he, the most popular of 
all Presidents, except the first one, could not have got a third term if 
he had asked for it, then his retirement proves not only that the two- 
term practice was right in his individual opinion, but that the general 
judgment of the nation was in its favor. It is true, in point of fact, 
that at that time, and for long before, the precedent set by Washing- 
ton "had become by universal consent a part of our republican system 



POLITICAL ESSAYS AND LETTERS. 379 

of government," and the whole people, much as they loved Mr. Mon- 
roe, would have frowned him out of countenance if he had attempted 
to resist it. Still, it is odd that the abuse by the Federalists of Mr. 
Monroe, or oven the vituperation of Burr, should not have been fished 
up and reproduced to show that his example is as wortliless as that of 
the other Presidents. Perhaps Mr. Howe, as a matter of literary taste, 
thinks it proper to deal only in original slanders. 

General Jackson does not get off so easily. We are told that 
" there is ground for believing that if Mr. Van Buren had not secured 
the succession to General Jackson tlie latter would have been retained 
for another term." This is like tlie account we have of Jefferson's 
boom. If there was any practice of Jackson's great predecessors in 
which he acquiesced with more deference than another, it was their 
voluntary retirement after a proper period of service. He was wholly 
opposed to the indefinite continuance of power in the same hand, and 
he expressed his opinions on that, as on other subjects, with an em- 
phasis which left no chance for misapprehension. The ground for 
believing that "in a certain contingency he would have been retained 
another term" is not anything he ever did or forbore to do — nothing 
that he ever wrote or spoke — nothing that ever was authorized by him 
or by the party which supported him, or by any representative of 
either. Mr. Howe has found somewhere an old newspaper, of date 
not given, but called the "Herald," and printed at Philadeli)hia, no 
one knows by whom, which was so obscure while it lasted, and ceased 
to exist so long ago, that nobody living recollects anything about it — 
and this paper (a Democratic paper, if Mr. Howe is correct) said, at 
some time or another, on its own responsible motion, and by way of 
prediction, that, if there should be serious division in the Democratic 
ranks, the National Convention would nominate Jackson for a thiid 
term. This prediction, which it is not pretended that Jackson ever saw 
or heard of, is "the ground for believing" that Jackson would have 
been retained, and constitutes the head and front of that great man's 
offending against the Washington precedent which he believed in so 
devoutly and acted upon so faithfully. It is impossible to take such 
idle trash into serious consideration. We let it go for what it will 
fetch, assuring Mr. Howe that, though patience is not our special 
virtue, we are able, by the grace of God, to endure this harmless kind 
of nonsense about General Jackson without losing our temper. 

Such is the outcome of Mr. Howe's assault ujoon the line of our 
great retiring Presidents, from Washington to Jackson inclusive. It 
must be admitted that, if the predetermined object of the attack was 
to make himself ridiculous, it is a marked success ; but if it was an 
effort in real earnest to diminish their fame, lower their standing, or 
shake the confidence of the country in their virtue, then it is the flat- 
test failure in his essay — and that is saying a great deal. 
25 



380 POLITICAL ESSAYS AND LETTERS. 

It is not simply the un worthiness of those Presidents who have 
adopted the two-term practice which makes it so odious in the eyes of 
Mr. Howe ; their authority, he thinks, is overruled by the ditferent 
and inconsistent practice of others. He says that " a majority of our 
Presidents have retired after a first term," and then puts the very 
pertinent question, " Why should the two-term precedent become a 
part of our governmental system more than the one-term system?" 
The answer is, that Mr. Howe is mistaken about the fact. A major- 
ity did not retire after a first-term. Previous to the time of General 
Grant, fourteen citizens had been elected to the office of President. 
Five of them— Washington, Jefferson, Madison, Monroe, and Jackson 
— were elected twice and retired after their second term. Twp— Har- 
rison and Taylor — were elected once and died in office. One-^Lin- 
coln — was elected twice and died during his second term. Four — 
John Adams, J. Q. Adams, Van Buren, and Pierce — were elected 
only once. They did not retire after their term expired, but were 
candidates for a second term. Only two of all the fourteen — Polk 
and Buchanan — retired upon one term without asking a re-election. 
It is exclusively the last two named that can be quoted as examples of 
retirement after a first term. Where, if not in Louisiana, did Mr. 
Howe learn that two were a majority of fourteen ? 

But, suppose it to be true that a majority of our Presidents had 
voluntarily and actually retired after their first term, setting aside the 
two-term precedent, and substituting in its place the one-term princi- 
ple "as a part of our governmental system," how would that help Mr. 
Howe's argument ? He is opposed to the two-term rule, and wants 
to prove that three terms are better ; thereupon he asserts that the 
highest authority is in favor of only one. He does not see that this is 
a logical contradiction of himself and cuts up his case by the roots. 

In the article we are reviewing, the author, after denouncing the 
Washington rule, tries to evade its operation upon his candidate by 
saying : " It only enjoins retirement after a second term. Grant re- 
tired at the end of the second term in strict accord with the prece- 
dents and the resolution." This is a dodge, and not a very artful one 
either. Grant never retired. He was, according to Mr. Ilowe's own 
testimony, a candidate in 1876, defeated by the influence of the 
Springer resolution and the cowardice of his party friends ; he has 
been a candidate ever since, and is a candidate now. Call you that 
retirement " in strict accord with the precedents and the resolution " ? 
He was compelled to forego his claim to a third term when his sec- 
ond expired ; but he stood back for the time, only to thrust himself 
forward again at the first opportunity. How does that accord with 
the precedents ? An obligation is not measured merely by its literal 
terms ; it must be met in good faith according to its sense, spirit, 
and equitj. It is held under every code of morals and of law, in 



POLITICAL ESSAYS AND LETTERS. 381 

all civilized countries, that a performance which keeps the word of 
promise to the ear and breaks it to the hope is no performance at 
all. For instance, an agreement to discontinue a pending action is 
not complied with by formally dismissing the suit and tlicn immedi- 
ately bringing another ; a contract to deliver a certain quantity of 
cloth in pieces is broken if it be cut into pieces so small as to make 
them useless ; a covenant to retire from the possession of land is 
not fulfilled when the occupant goes out to-day and comes back to- 
morrow. This principle of private and jiublic morality, which de- 
tests shams, might be supported by innumerable cases if it were 
not too plain to need illustration. It will certainly be acknowledged 
by every candid man that, if General Grant, after two elections, kept 
himself in the field as a persistent candidate for a third term, the 
pretense that he retired agreeably to the precedents is untrue and 
fraudulent. But the imposture is not chargeable upon him. He docs 
not pretend to have retired. He is a candidate for another term in 
contempt of the precedents. lie docs not evade, but boldly defies 
the authority of his predecessors. He has, and is entitled to, some 
credit for obtuseness of moral perception, but still he is conscious that 
equivocation is as bad as direct falsehood ; and we have no right to 
suppose that he CA^er adoj)ted the Know-nothing philosophy, which 
teaches its disciples to — 

'• Palter with us in a double sense, 
And lie liiio truth." 

Thus far I have been answering objections to the two-term rule, 
and to the character of the men who made it. I think it may be 
affirmed with some confidence that Washington was not unworthy 
of the profound veneration in which he is held in this country and 
throughout the world ; that succeeding Presidents, when they fol- 
lowed his footsteps, not only acknowledged his wisdom and patriot- 
ism, but showed their own ; that the American people of our day, 
when they refused a third term to a candidate who had already served 
for two, were not behaving like cowards scared by a senseless clamor, 
but doing what a prudent regard for their true interests required ; 
that when the House of Representatives, in obedience to the universal 
sentiment of its constituents, unanimously and without distinction of 
party, put upon its records and published to the world its solemn 
declaration that the example of Washington must be adhered to in 
the future as in the past, they did not enact charlatanism or repeat a 
vociferation, or issue a strange fulmination, or iynpeach the Constitu- 
tion, or libel its framers, or counterfeit history, or insult common 
sense, but spoke Avhat they at least believed to be the words of truth 
and soberness. 

But perhaps it is not enough to have negatived Mr. Howe's allega- 



382 POLITICAL ESSAYS AND LETTERS. 

tions. We are not to set up political dogmas or invoke a blind faith 
even in the founders of the republic. The mere authority of names, 
however great, ought not to command our assent. We should have 
reasons for our belief, and be instant in season and out of season to 
give them when asked for. But a fundamental doctrine, self-evi- 
dently true, though easy to defend, is the hardest of all things to sup- 
port by affirmative argument. We can not help but sympathize with 
the indignation of Pitt when he thundered out his refusal to look at 
books or listen to logic in defense of English liberty. In a free 
country, the man who would be faithful to his fellows is neces- 
sarily inclined to take as a postulate whatever manifestly tends to the 
preservation of the public right. 

In the matter before us, it should be plain to every "reasonable 
creature in esse " that long continuance of supreme executive power 
in one hand is not only perilous to free institutions, but perfectly cer- 
tain to destroy them. Some fixed time there ought to be when the 
people will not only have the right, but exercise it, to displace their 
Chief Magistrate and take another. If they do not possess this right, 
they are political bond-servants by law ; if, holding it, they forego the 
use of it, they make themselves, quoad hoc, voluntary slaves, and 
they soon come to be governed in all things by the will of their su- 
perior. A lease for years, renewable and always renewed, gives the 
tenant an estate without end, and makes him lord of the fee. 

Where the Chief Magistrate is vested, as ours is, with great i')ower 
liable to gross abuse, if there is no law or practice which forbids him 
to be re-elected, he can remain in office for life as easily as for a term. 
He has the appointment of all officers, the making of all public con- 
tracts, and a veto upon all legislation, besides the command of the 
army and navy. By an unscrupulous use of these means he can 
coerce not only his horde of immediate dependents, but he can control 
the corporations and become the master of all the rings, put the busi- 
ness of all classes under his feet, corrupt the venal, frighten the timid, 
and check all ambitions but his own. He can force the elections of 
every State he desires to carry by the bayonets of his army. If that 
fails, he can order a false return, and pay for it out of the public 
treasury. The people would soon perceive opposition to be useless 
and accept the situation ; elections would be as mere a matter of form 
as they were in Rome when such consuls as Nero and Domitian were 
elected regularly every year under the supervision of the pretorian 
guards. 

If these were no more than remote possibilities, prudence should 
guard us against them. But they are near probabilities ; the signs 
of the times warn us that the peril to our institutions is imminent ; 
the danger is already on the wing. It is vain to remind us that the 
President swears to preserve, protect, and defend the Constitution 



POLITICAL ESSAYS AND LETTERS. 383 

and see the laws faithfully executed. That is true ; and it is also 
true that, if there be no perjury in the case, the Constitution, laws, 
and liberties of the country are safe. But the last twenty years have 
given us ample proof that an oath is not much restraint upon a Presi- 
dent who is incited by ambition, rapacity, or strong party feeling, to 
break it. 

It is true that this presupposes a people much degenerated, and a 
magistrate animated mainly by the vulgar love of power for its own 
sake ; but exactly such a conjunction of things has always been feared 
with good reason, and hence comes the desire to put every check on 
that tendency to " strong government " which is now manifesting it- 
self in many quarters. 

What is the remedy ? How shall we avert the dire calamities with 
which we are threatened ? The answer comes from the graves of our 
fathers : By the frequent election of new men. Other help or hope 
for the salvation of free government there is none under heaven. 

If history does not teach this, we have read it all wrong. In the 
republics of ancient and modern times the chief magistrate was in- 
trusted with only temporary power, and always went out of oflfice at 
the end of a short period, fixed and prescribed by law or custom. It 
was this, indeed, which made the substantial distinction between them 
and the monarchies around them. An unpunished transgression of 
the customary limitation was uniformly followed by destruction. 
Everywhere and always it was the fatal symptom of decay — the sure 
forerunner of ruin. When Caesar refused to lay down his consulship, 
as his predecessors had done, at the end of a year, and was re-elected 
time after time with the acquiescence of the Senate and the people, 
all that was real in Roman freedom ceased to exist. Two republics in 
France were brought to an end in the same way. Napoleon began by 
being Consul for a term, then was elected for life, and finally became 
Emperor, with the powers of an absolute despot. The last Bonaparte 
was President for four years, was re-elected for ten, and ended, like 
his uncle, in grasping the imperial crown. 

" May this be washed in Lethe and forgotten " ? Shall these les- 
sons be lost ? Shall the lamp which guided our forefathers be extin- 
guished ? Shall the broad daylight of all human experience be closed 
up in a little dark lantern manufactured at Milwaukee ? I think this 
can not be done ; " the eternal verities " are against it. The most 
powerful third-termer may as well try to blow out the sun, as he would 
a tallow candle, with the breath of his mouth. 

Moreover, the two-term principle ought to be adhered to by us and 
by those who come after us (if there were no other reason), simply 
because it was a practice of those who went before us. It is to the 
traditions of the fathers that we owe our civilization. All that we 
have which is hol}'^. in religion, pure in morals, or perfect in politics, 



384 POLITICAL ESSAYS AND LETTERS. 

is so derived and so transmitted. Without that, we could not be a 
nation in any proper sense of the term, but a mere collection of bar- 
barians, tame or savage according to circumstances. The practice of 
one generation is and ought to be law for another. In England every 
custom favoring civil liberty, once adopted by general consent, became 
binding upon prince and people. These customs make up the body 
of the common law, and the English Constitution itself is but a col- 
lection of them, " Honor thy father and tiiy mother, that thy days 
maybe long in the land" — this command was addressed to ajyeojo^e, 
and it was length of national life that God promised as the reward of 
obedience. The later prophets spake as they were moved when they 
warned tluit same people that their institutions would perish if they 
were given unto change, and exhorted them to be conservative — to 
**look at the old paths and stand upon the ancient ways." 

I do not expect anything I can say to be received as a vindication 
of the two-term rule. Nor is it necessary. All the support it requires 
was long ago* furnished by another, the latchct of whose shoes I am 
not worthy to stoop down and unloose. Jefferson, the stainless citi- 
zen, the sterling patriot, the unequaled statesman — at once the great- 
est apostle and the truest prophet that human freedom ever had — gave 
his judgment not only at the time he acted upon the rule, but ex- 
pressed his convictions after they were strengthened by many years of 
later reflection. His brief autobiography, written in the retirement 
of Monticcllo, contains the following passage : 

This Convention met in Philadelphia on the 35th of May, 1787. 
It sat with closed doors, and kept all its proceedings secret until its 
dissolution on the 17th of Sei)tomber, when the results of its labors 
were published all together. I received a copy early in November, 
and read and contemplated its provisions with great satisfaction. As 
not a member of the Convention, however, nor probably a single citi- 
zen of the Union had approved it in all its parts, so I, too, found arti- 
cles which I thought objectionable. The absence of express declara- 
tions insuring freedom of religion, freedom of the press, freedom of 
the person under the uninterrupted protection of the habeas corpus, 
and trial by jury in civil as well as in criminal cases, excited my jeal- 
ousy, and the re-eligibility of the President for life I quite disapproved. 
I expressed freely in letters to my friends, and most particularly to 
Mr. Madison and General Washington, my a])probations and objec- 
tions, llow the good should be secured and the ill brought to rights 
was the difficulty. To refer it back to a new Convention might en- 
danger the loss of the whole. My first idea was, that the nine States 
first acting should accept it unconditionally, and thus secure what in 
it was good, and that the last four should accept on the previous con- 
dition that certain amendments should be agreed to ; but a better 
course was devised, of accepting the whole and trusting that the good 
sense and honest intuitions of our citizens Avould make the alterations 
which should be deemed necessary. Accordingly, all accepted, six 
without objection and seven with recommendations of specified amend- 



POLITICAL ESSAYS AND LETTERS. 385 

ments. Those respecting the press, religion, and juries, with several 
others of great value, were accordingly made ; but the habeas corpus 
was left to the discretion of Congress, and the amendment against the 
re-eligibility of the President was not proposed. My fears of that 
feature were founded on tlie importance of the office, on the tierce 
contentions it might excite among ourselves, if continuable for life, 
and the dangers of interference, either with money or arms, by foreign 
nations to whom the choice of an American President might become 
interesting. Examples of this abounded in history ; in the case of the 
Koman Emperors, for instance ; of the Popes, wliile of any signilicance ; 
of the German Em})erors ; the Kings of Poland, and the Deys of Bar- 
bary. I had observed, too, in the feudal history, and in the recent 
instance particularly of the fStadtholder of Holland, how easily offices 
or tenures for life slide into inheritances. My wish, therefore, was 
that the President should be elected for seven years and be ineligible 
afterward. This term I thought sufficient to enable him, Avith the con- 
currence of the Legislature, to carry through and establisli any system 
of improvement he should propose for the general good. J3ut the 
practice adopted, I think, is better, allowing his continuance for eight 
years, with a liability to be dropped at half-way of the term, making 
that a period of [)robation. That this continuance should be restrained 
to seven years was the opinion of the Convention at an earlier stage of 
its session, when it voted that term by a majority of eight against two, 
and by a simi)le majority that he should be ineligible a second time. 
This opinion was confirmed by the House so late as July 2Gth, referred 
to the committee of detail, reported favorably by them, and changed 
to the present form by final vote, on the last day but one of their ses- 
sion. Of this change three States expressed their disap])robation — 
New York by recommending an amendment that the President should 
not be eligible a third time, and Virginia and North Carolina that he 
should not be capable of serving more than eight in any term of six- 
teen years ; and, though this amendment has not been made in form, 
yet practice seems to have established it. The example of four Presi- 
dents voluntarily retiring at the end of their eighth year, and the prog- 
ress of public opinion that the princijjle is salutary, have given it in 
practice the form of precedent and usage ; insomuch that, should a 
President consent to be a candidate for a third election, I trust he 
would be rejected on this demonstration of ambitious views. 

It is time now that we come to the concrete part of the subject. 
The practical object of Mr. Howe's article is to make General Grant 
President for another term. It is not for an abstraction that he de- 
nounces the two-term precedent and vilifies the Springer resolution. 
The rule might stand if Grant could be elected without breaking it 
down. But Mr. Howe thinks that the superiority of his candidate 
is so very great that all authorities which oppose him should be dis- 
regarded, and he supports this opinion by assertions so extravagant 
that we only wonder how any man in his sober senses could have made 
them. 

He pictures Grant as " the foremost man of his age " ; says " he 
stands upon the mountain-top," and declares that ''the eager world 



386 POLITICAL ESSAYS AND LETTERS. 

lias set the seal of its primacy " on him. Grant's competitors— Blaine, 
Conkling, Bristow, Hayes, and the rest of them — are described as 
"mere metallic calves," and all his opponents are scared miners, with 
candles in their caps, "going into subterranean depths to quarry out a 
President." This imagery is bold and original, though not highly 
poetic nor very gracefully turned. It is Mr. Howe's way of saying 
that he will be very wroth if Grant is not made President a third time, 
in spite of the salutary principle which forbids it. But we are more 
afraid of General Grant than we are of Mr. Howe ; we would infinitely 
rather be scolded by the one than scourged by the other ; and there- 
fore we, the yeomanry of the country, driven to a choice of evils, pre- 
sume to withstand Mr. Howe, and tell him in his senatorial face that 
his master shall not be ours if we can help it. When it comes to the 
tug, General Grant may be too much for the nation, but it shall not 
be said that we are frightened by this preliminary blast of mere wind. 

A third term for Grant does not mean a third term only, but any 
number of terms that he chooses to demand. The imperial method 
of carrying all elections by corruption or force, or of declaring them 
to be carried when they are not, is to be permanently substituted for 
the system of free, popular choice. 

The figure of Grant standing with the seal of primacy on the 
mountain-top and looking down on the inhabitants of the plain below 
gives a measure of the elevation which his sycophants flatter him with 
the hope of attaining. They urge the necessity of a strong government 
almost in the very words used by the adherents of Caesar and the two 
Napoleons. Strong government, in their sense, means weak laws and 
a strong ruler — in other words, a substantial monarchy, powerful in 
its scorn of all legal restraints. If Mr. Howe does not know this to 
^be the design, he is not fit to share in the third-term movement, much 
less to lead it. He should learn the views of his faction with all possi- 
ble haste. Let him hear the revelations of Senator Sharon, who is not 
a "metallic calf" nor a scared miner, but a worshiper of the man on 
the mountain as eager as himself. Let him look at the idea of a strong 
government as given in the February Atlantic Monthly ; let him 
listen to the diatribes of all his associates, Avho speak with habitual 
contempt about the rights of the States, or let him go up to the 
mountain and ask His Primacy what he himself thinks of a President 
who is tame enough to keep his oath of fidelity to an old Constitution 
which forbids him to trample upon the rights of the people. 

We, the people — I do not speak by authority, but truly as far as I 
know — we, the peoj)le, are not, in every event, and in all possible con- 
tingencies, unalterably opposed to a strong government with General 
Grant for a monarch. If his instatement can be accomplished by the 
direct application of physical force, without any shams or false pre- 
tenses, it may be a comparative good for us. If, instead of swearing 



POLITICAL ESSAYS AND LETTERS. 387 

to preserve, protect, and defend the Constitution, lie will candidly 
declare it abolished, and have no perjury in the business, we may ac- 
cept our fate, and accept it uncomplainingly, lest a Avorsc thing come 
to us. A rotten republic is an infinitely worse thing. 

A free democratic republican system of government, honestly ad- 
ministered by agents of the people's true choice ; a government such 
as ours was intended to be, with the powers of the Federal Govern- 
ment, the rights of the States, and the liberties of the people so har- 
moniously adjusted that each may check the excesses of the other — 
such a government, scrupulously administered within its constitutional 
limits, is, without doubt, the choicest blessing that God in his loving- 
kindness ever vouchsafed to any people. On the other hand, it is 
quite as sure that the false administration of a government theoreti- 
cally free ; which acknowledges the rights of the people, and yet con- 
tinually treads them under foot ; which swears to save, and perjuriously 
works to destroy ; which receives and promises to execute a most 
sacred trust, according to terms jirescribed with unmistakable clear- 
ness, and then dishonestly breaks the engagement — such a government, 
so conducted, is an unspeakable curse. It is not only an oppression, 
but a most demoralizing cheat ; a base imposture, more degrading to 
the nation which submits to it than the heaviest yoke that despotic 
tyranny can fasten on its neck. If, therefore, a constitutional and 
legal administration of our national affairs be out of the question — if 
our only choice lies between a i^erverted republic and a monarchy — 
then stop this hypocritical pretense of free government, and give us 
a king. And who shall be our royal master but Grant ? That he 
will serve the turn as well as, if not better than, another, will, I think, 
be admitted by all who attend to the reasons now presently to be 
enumerated. 

In the first place, a new monarch (that is, one who has no hered- 
itary claims) ought to be an approved good soldier, with skill to 
enforce obedience ; otherwise his sway could not last long over people 
disposed to be turbulent. All, or nearly all, the founders of royal 
lines have been military men, from Nimrod downward. It is vain to 
deny that General Grant's reputation for military talent is well-found- 
ed. It is more than doubtful if any officer of our army could have 
subjugated the South so completely even with all Grant's advantages, 
or taken so many defeats and still won a complete victory in the end. 
It is not, however, what he has done, but what he has shown himself 
capable of doing, that gives him his leading qualification for master- 
dom now. The fear that goes before him will make actual violence 
unnecessary. His strength of character will frighten his subjects 
into submission where a weaker man would be compelled to butcher 
them for insurrection. 

General Grant is a good hater of those who thwart him, which 



388 POLITICAL ESSAYS AND LETTERS. 

is natural, and not a serious fault ; but he is not fiercely vindictive, 
and his career has been marked by no act of savage cruelty. He 
could not be an Antonine or a Titus, but we can trust him not to be 
a Nero. 

It may be objected that his moral behavior and mental acquire- 
ments do not bring him up to the mark which ought to be reached 
by the permanent ruler of a great, intelligent, and highly civilized 
nation. But in this respect he is as good as the average of sovereign 
princes. The preseut reigning family of England has never had a 
male member who was his superior. For centuries past the potentates 
of Continental Europe, with only a few exceptions, have had habits 
as coarse as his, and he is wholly free from some terrible vices to 
which many of them were addicted. It seems to me that he will do 
well enough to "herd with vulgar kings." 

The nepotism from which our democratic tastes revolt is virtue 
in a king. All monarchs are expected to look after their own families 
first, and all have their minions and favorites whom they fatten, spoil, 
and corrupt. Who among them has not given his protection to a 
worse set than Grant ? 

The favor which Grant bestows upon corrupt rings is given for a 
purpose. As a candidate he can not be elected, as President he can 
not sustain himself, without their support ; but enthrone him and he 
can afford to defy them. May we not reasonably hope that he will 
use his power, when it becomes omnipotent, to make these bad com- 
binations cease to plunder the people ? 

What we call tlie greediness of General Grant for the wages of 
official iniquity would be entirely proper in the supreme ruler of an 
absolute government. It is not bribery to buy the favor of a king 
with presents, and a king is not guilty of stealing when he helps him- 
self to public money without legal right. 

It looks to us like a terrible outrage for a President to have him- 
self represented at a State election by the bayonets of his standing 
army, to install Governors that were rejected at the polls, to tumble 
the chosen Legislature of a free State out of its hall, to procure the 
fabrication of false returns and force them on the people. But Gen- 
eral Grant's lawlessness would be lawful in a country governed by the 
mere will of a personal sovereign. Where there is no law there can be 
no transgression. 

But Avhile General Grant has some qualities which would make 
him a tolerable king, and none that would make him an unendurably 
bad one, he is not at all the kind of person that is needed as Presi- 
dent of the United States, on the assumption that our system of gov- 
ernment is to be continued. I think it is to be continued. Unlike 
Mr. O'Conor, I believe that the struggle to get it honestly adminis- 
tered is not hopeless. We are not yet reduced to the necessity of 



POLITICAL ESSAYS AND LETTERS. 389 

choosing between a republic wholly corrupt and a monarchy founded 
in pure force. Therefore, I conclude with Jefferson that, if any man 
(General Grant j^articularly) "' consent to be a candidate for a third, 
election, I trust he will be rejected on this demonstration of ambitim 
yiews." 




GENERAL GRANT AND STRONG GOVERNMENT. 

I EXPECTED to write for this number of the Review an essay on 
*' Strong Government," to show the calamitous evils it has brought 
on other countries, and to point out the dangers with which our own 
is threatened by its stealthy approaches. And herein I would have 
tried to make plain the principle of State rights, the solemnity of the 
compact by which those rights were reserved, the dishonesty (not the 
error) of the interpretation which denies them, and the duty of main- 
taining them as the sheet-anchor of individual liberty. But Mr. Bout- 
well turns me aside, or rather puts me back, by a new defense of the 
third term, which, upon the prudent principle of obsta principiis, the 
friends of free government must settle first of all ; for this third-term 
innovation is to arbitrary power what a rat-hole in a Dutch dike is to 
the surging waters of the ocean : if not stopjDed u]o, it must become a 
huge crevasse, submerging all the land. 

I do not complain of Mr. Boutwell's article, lie had a right to 
interject his antagonism, and he is an opponent not to bo ignored. 
He is (or has been) a high-placed gentleman — Governor of Massachu- 
setts, Representative in Congress, Senator of the United States, and 
Secretary of the Treasury. Besides, he is a man of authority in his 
faction, and trusted to do their polemics. When he speaks it is with 
a voice potential, as double as that of any leader among them ; and, 
on certain points, his expressive silence reveals the designs of his as- 
sociates as well as his own. Moreover, his article has some fragments 
of precious truth, which he has dropped along the path of his argu- 
ment, apparently unconscious of their value. These I propose to 
gather up for the service of liberty and justice, to which all truth be- 
longs. 

He admits that Washington and Jefferson were patriotic and far- 
sighted men, entitled to a veneration Avhich will "survive the criticism 
of Judge Howe, and outlive the defense of Judge Black" (p. 372). 
The whole American Democracy will thank Mr. Boutwell for this un- 
expected and most liberal concession. The friends of free government 
in every land and clime throughout the earth will be rejoiced to learn 
that the Father of this Republic, and his great coadjutor the Aj^ostle 
of Liberty, are acknowledged to be venerable even by a subverter of 



393 POLITICAL ESSAYS AND LETTERS. 

their work, a contemner of their great example, a most obstinate dis- 
believer in their teachings. I am placed individually under special 
obligations to Mr. Boutwell by his gracious permission to speak well 
of Washington and Jefferson without injuring them fatally in his esti- 
mation. When he agrees that the fame of those illustrious men may 
still live, notwithstanding my defense of them against the aspersions 
of Mr. Howe, he accords me a high privilege, and binds me to him 
"with cords of perdurable toughness." 

Mr. Boutwell gives us to understand (p. 371) that the character 
of Washington is not to be attacked just now, because "his example 
is not the only remainiiif/ bulwark for the protection of our assailed 
and imperiled liberties. If this bo so, then the reputation of Wash- 
ington will need a more ardent defender " than I. There is some ob- 
scurity about this language, but the unavoidable inference from it 
seems to be that the projectors of a "strong (jovernmenf'' intend to 
break down all the other defenses of civil liberty first, and then, when 
nothing but the example of Washington shall be left for the people to 
rally upon, his reputation will be assaulted so ferociously that no ardor 
of defense can save it from destruction. Be it so. "Sufficient unto 
the day is the evil thereof." I shall be out of the way before that last 
struggle takes place, but I shall die in the belief that the great name 
of Washington will continue to be a bulwark of civil liberty, invincible 
forever. If the worst comes to the worst, and we have no other shield, 
they who rush upon the thick bosses of that one will but dash them- 
selves to pieces. Evidently Mr. Boutwell does not see the grandeur 
of Washington's character or the impregnable basis upon which it 
stands. The moral influence of it on the hearts of all the world, ex- 
cept a few narrow-minded and ignorant enemies of constitutional gov- 
ernment, is much greater than he thinks. 

But this is a point on which there is not now any dis^iute between 
Mr. Boutwell and me. He gives it up that both Washington and Jef- 
ferson were wise and patriotic men, for whom there is no lack of ven- 
eration. It is not true, however, that my "argument against the 
election of any person to the presidency a third time is based (exclu- 
sively) upon the example of Washington and the declarations of Jeffer- 
son." He was bound to know, and, if he read the paper he was answer- 
ing, he did know, that I, as well as all the friends of the two-term rule, 
based our support of it upon the additional authority of Madison, 
Monroe, and Jackson, who greatly strengthened the principle, and 
increased the value of the precedent by repeating it. They stood as 
palpably in the way of the third-termers as Washington and Jefferson ; 
and yet Mr. Boutwell has not a Avord to say against them. I take this 
as an acknowledgment that they too have a title to general veneration 
which can not be questioned. All of our great exemplars are allowed, 
at least for the present, to pass with the luster of their reputations 



POLITICAL ESSAYS AND LETTERS. 391 

undiminished. For this I can but renew tlie expressions of my grati- 
tude to Mr. Boutwell and the other strong-government men, for whom 
he speaks. 

But the rule is not established only by the example and precept of 
the retiring Presidents. It has a still broader and deeper foundation 
in the collective wisdom of the whole nation, which is the highest 
source, the best authority, and the strongest support of all law. 

Mr. Boutwell tries to disparage it by saying that Washington, 
Jefferson, and Madison could not have believed in it, else they would 
have made it a part of the written Constitution. He says, substan- 
tially, that, if they had thought a limitation u^wn the tenure of the 
executive office proper or necessary, their failure to put a provision 
for that purpose into the organic law was a disregard of their duty so 
gross that it admits of no excuse or apology. This is an attempt to 
reason falsely from perverted facts. Mr. Boutwell would never have 
tried it if he could have kept clear of it ; but he had to construct his 
argument out of the materials which the strong-government men gave 
him, and this was the best they could furnish. The known truth 
contradicts every word of it. 

Washington and Madison acted throughout the session of the Con- 
vention in steady opposition to unlimited re-elections. How or why 
the provision came to be dropped out of the plan at the very close of 
the session needs no explanation here : it is certain that Washington 
and Madison were in no wise to blame for it. They both thought it 
a misfortune, and to this conviction all their conduct was faithful 
afterward as well as before. When Jefferson, who had been absent on 
the mission to Franco, returned home, he conferred with them and 
others on the best mode of remedying this and some other defects in 
the instrument ; but, fearing that a serious or protracted opposition 
might cause it to fall through altogether, they concluded to advise its 
immediate and unconditional ratification. The certainty that Washing- 
ton would be the first President, and the belief that his example would 
make a law as effective as any that could be framed in written words, 
reconciled the country, and gave the whole people faith in the per- 
petuity of their institutions. That Washington considered a third 
term as leading to the overthrow of the Government, and intended his 
own retirement to be a precedent which would shield us from that 
danger, is a fact so notorious that Mr. Boutwell himself can not shut 
his eyes upon it. After saying (p. 375) that Washington "yearned 
for the peace and quiet of private life," he adds this remarkable lan- 
guage — remarkable, I mean, as coming from him : " iVbr caii there he 
a douM that, superadded to these personal considerations, was the 
thought that his example might serve as a restraint in case of the ap- 
pearance of a popular leader ivho should seek to subvert the Government 
through successive elections.'" 



392 POLITICAL ESSAYS AND LETTERS. 

Truer words than these were never spoken. But they are not all 
the truth. Mr. Boutwell should have added that Washington's retire- 
ment was then and there accepted by the nation as supplying the want 
of a written interdict upon a third term ; as filling up the casus omis- 
sus in the Constitution ; as making a part of our free institutions ; as 
interposing a safeguard against a subversion of the Government by suc- 
cessive elections — as the beginning of a custom which should have *'no 
variableness, neither shadow of turning." If anybody susjoects me of 
overstating the case, let him look at the record and be satisfied. 

In December, 1796, Washington opened the session of the last Con- 
gress that assembled under his Administration, as was his wont, with 
a speech, in the course of which he simply referred to the situation in 
which he stood for the last time in the midst of the people's repre- 
sentatives. The answer shows what construction was then given to 
his conduct in declining a third election ; how gratefully it Avas ac- 
cepted and how highly it was appreciated as a jDrecedent for the future. 
The rejiresentatives, speaking for themselves and the nation, of whose 
hearts they believed themselves the faithful interpreters, said that 
" that event of itself completed the luster of a character already con- 
spicuously unrivaled by the coincidence of virtue, talents, success, and 
public estimation." This act, like his resignation as Commander-in- 
Chief, they affirmed to be **no less rare to mankind than valuable to 
a republic^'' ; and concluded thus : "For your country's sake — for the 
sake of republican liberty — it is our earnest wish that your example 
may be the guide of your successors, and thus, after being tlie orna- 
ment and safeguard of the present age, become the patrimony of our 
descendants.^' 

Jefferson's adoption of the Washington precedent Avas more uni- 
versally approved than any other act of his pure and beneficent life, 
and the reasoning by which he showed that a third term was incon- 
sistent with the safety of the republic has never been controverted by 
his worst detractors. By the time Madison served out his two terms, 
the rule had become so firmly fixed in our system that even the Father 
of the Constitution, fresh though he was from a victorious struggle 
with the enemies of the nation in Old England and New England, 
could have done nothing either to strengthen or to weaken it. It is 
true also of Monroe, that nothing was left him but implicit obedience. 
He treated the two-term rule as a settled institution, and, if he had 
shown the slightest sign of disrespect for it, he would have lost for- 
ever the unbounded popularity which he had won by long years of 
virtuous service. 

Jackson was as faithful to it as any of his predecessors, and be- 
lieved as devoutly as they did that the continuance of one man in 
the presidential office for an indefinite time was in deadly conflict 
with the fundamental idea cf a republican government. But he 



POLITICAL ESSA YS AND LETTERS. 393 

doubted the stability of the custom. The fervent love with which 
he was wedded to his country made him jealous of the efforts which 
might be used to debauch her virtue. He had seen strong govern- 
ment raise its head almost as impudently as we see it now. In de- 
fense of the Constitution, he so wounded the monster that most 
men thought it forever disabled. But he was fully conscious that 
he had "scotched the snake, not killed it." He feared that some 
adventurous enemy of equal rights, aided by a combination of special 
interests with corrupt politicians, would contrive an excuse for break- 
ing through the unwritten law and get a following large enough to 
do it. To prevent that calamity he proposed an amendment to the 
Constitution which would put an express limitation on the right of 
re-election. His view was not concurred in. The representatives of 
the people and the people themselves thought the custom as strong as 
any amendment could make it. Jackson, acquiescing, was content to 
strengthen it by adding his own example to the others. 

From that time to the summer of 1875 the wisdom or necessity 
of the two-term rule was never questioned. Nobody denied its 
binding force on the national conscience, and the current of popular 
feeling in its favor, like a great river receiving its affluents from 
every region it drains, became wider and deej^er as it rolled down 
through the ages. Of this, the most unmistakable evidence that 
could be given is the rebuke so solemnly and unanimously admin- 
istered by the House of Representatives to General Grant when he 
began to be pressed for a third election. That resolution was received 
with a shout of universal approbation. Mr. Boutwell's studied ab- 
stinence from all allusion to it shows that he believes it to have been 
the true expression of a determination to stand by the two-term rule, 
and guard it well against the venal ambition which, by breaking it 
down, would bring our free institutions into peril. Both the Con- 
gress of 1796, which thanked the Father of his Country for making 
that salutary precedent, and the Congress of 1875, which refused to 
abandon it after eighty years of use, faithfully interpreted the heart 
of the nation ; each was a mirror of existing public opinion ; and 
each "gave to the very age and body of the time its form and press- 
ure." 

Our Saxon ancestors had certain cudoms which made them the 
freest people then in the world. Few of those customs were so well 
established as this one of ours by uninterrupted use and universal 
consent ; but they were customs generally acquiesced in, and there- 
fore laws which enlarged their own liberties and defended their rights 
against the encroachments of monarchy. Then rose a king, greedy 
for strong government, and anxious above all things to abolish the 
popular customs which limited his power. He and his corrupt para- 
sites tried all that in them lay, now by insidious wiles and again by 



394: POLITICAL ESSAYS AND LETTERS. 

threats of force, to get a surrender of tliose customary rights. But 
the barons, s])eaking for themselves and for the freemen under their 
protection, gave him that memorable answer, sim])le to be sure, but 
made sublime by the occasion: '■^ Nolumus leyeii Anglio} mutarc.'^ 
("Wo luill not change the laws of England.") This substantially 
was the answer which CJrant got from the Congress of 1875 when he 
wanted to abandon a time-honored custom which was "part of oiir 
free institutions." May Got] forbid that he or his minions should 
ever have any otlier ! 

Mr. Boutwell protests most vehemently against the binding obliga- 
tion of a custom ; he asserts that the tradition of the fathers with 
respect to a tliird term can never have the cifect of a written restric- 
tion — Unit the tradition in (pu\stion is not Avhat Congress said it was 
in 1875, a part of our free institutions ; that it is a mere oi)inion en- 
tertained by men of a past generation, but entitled to no controlling 
influence at the present time. He will not condescend to give rea- 
sons for this judgment; ''statement," ho says, "is sufficient; argu- 
ment is unnecessary." And hero is the statement: "We refuse to 
allow the hands of dead men to control the soil of the country ; and 
shall wo witliout inquiry, without a judgment of our own, permit the 
opinions of dead men to control the thoughts and the policy of the 
country?" (p. 373). 

It is a pity to take (he conceit out of a gentleman who is so happy 
in his contempt for dead men. But it is necessary to tell him that 
this is not merely an impious violation of the fifth commandment, 
l)ut an utterance void of all reason and sense. It is a bald absurdity 
to say that we refuse to allow dead men's hands to cultivate and use 
the soil ; for the hands of dead men were never offered to us for that 
jnirpose. If it be meant to say that our right in the soil is not defined, 
and our use of it regulated by the laws, customs, conveyances, and 
testamentary writings of dead men, then the writer does not at all 
know what he is talking about ; for in that sense the soil is controlled 
by dead men. Precisely the same is true of public affairs. While 
dead men do not vote at elections, or collect taxes, or light in the 
army, or sit in the courts, yet their decisions, customs, opinions, tra- 
ditions, and enactments define the limits of i)ower, protect the liberty, 
regulate the policy, and control the thought of the country upon all 
subjects, religious, moral, and legal, as cfTcctually ns if they were still 
alive. AVithout this control, society would go all to pieces in an hour. 
Without it we could have neither church nor state, nor family nor social 
existence. Wo must be so governed ; and it is the mere drivel of 
communism to say, "We refiise." 

Why may not a custom like this become binding as a law ? Con- 
gress, in December, 1875, declared that it was binding law, which could 
not be disregarded without bringing our free institutions into great 



POLITICAL ESSAYS AND LETTERS. 395 

danger ; therefore, it ought to be strictly adhered to, and all the peo- 
ple said, Amen ! But Mr. Boutwell considers this a mere notion, 
supported by nothing better than rhetoric. Let him and his disci- 
ples reflect on it a little further, and see if they arc not mistaken. 

It is a principle of universal jurisprudence, which i)revails in every 
civilized country, that a rule of public or private conduct spontane- 
ously adopted and continuously observed, becomes the law of the subject 
to which it relates, and is perfectly binding on the conscience of mag- 
istrate and people, provided it be reasonable and just in itself, notori- 
ously practiced, of long standing, generally acquiesced in, uniform 
in its operation, uninterrupted in its course, and not in conflict with 
any law of paramount obligation. Such a custom is, always and 
everywhere, held to be especially sacred when it is intended and 
used as a restriction upon political power or a safeguard to civil 
liberty. 

That the two-terra rule is coeval with the Governrfient, consistent 
with the Constitution, notorious, uniform, uninterrupted, and unop- 
posed for nearly a century, is, as matter of fact, undenied and undeni- 
able. It has, therefore, all the requisites of a binding law, unless its 
opponents can show it to be intrinsically an unreasonable or bad rule. 
But I aflirm that the custom is salutary, wholesome, and good ; 
and this I can prove to the hearts' content of all third -termers, by 
their own spokesman, Mr. Boutwell himself. 

He opens his article thus : "In politics, morals, and law, there is 
a field for presumption." If he had been willing to ''talk less in 
King Cambyses' vein," lie would have said that in those sciences, as 
in all others, a truth may bo shown by prcsumiDtivc as well as by di- 
rect evidence. What, then, are we to presume concerning the custom 
in question when we look at its origin and history ? Begun and car- 
ried out by the foremost men in the world, it was accepted from the 
first, and upheld to the last, by the collective wisdom of the whole 
nation. Does not this raise a presumption — too strong to be resisted 
by any sensible man — that the rule is just, proi3cr, and necessary ? 

But, added to this, I can produce Mr. Boutwell's positive testimo- 
ny. I am aware that a cause is not logically lost because one of its de- 
fenders contradicts himself when he speaks upon it. But, where the 
authors of a new political scheme put forward one of their number to 
reconcile its opponents by displaying its merits, and the advocate ad- 
mits that it has no merits, it is perfectly fair to take him at his word. 
The confession in this case is none tlie less useful because it is grudg- 
ingly made in little pieces which lie about, here and there, in mere 
confusion. It is vexatious to pick out these fragmentary revelations, 
but we must take the trouble. Like an unwilling witness under press- 
ure of his conscience, the truth oozes out of him drop by drop, and 
we must patiently catch it as it comes. 
20 



396 POLITICAL ESSAYS AND LETTERS. 

He says, totidem verbis (on p. 376), that the authorities in favor 
of the rule are good ; that the "experience of Europe gave rise to an 
opinion in America that it was dangerous to permit the chief mag- 
istrate to remain in office for a long time," and then admits that 
" when there was no trustworthy history either for warning or exam- 
ple, except that of ancient Rome and the history of the media3val and 
feudal states of Europe, the argument [to wit, the argument which 
proves the rule to be necessary] was not bad." Elsewhere (p. 375) he 
discloses his knowledge that the argument against a third term at 
that time, instead of being a bad one, was good enough to make Wash- 
ington and his compatriots determine to prevent it by his example, 
and thus save the Government from subversion. Does Mr. Boutwell 
assert that anything in the history of the world has occurred since then 
which ought to weaken our faith in the value and importance of the 
rule ? Certainly not ; on the contrary, he confesses that " Washing- 
ton's example was set off and made more impressive by the phenom- 
enon of a Corsican corporal, passing as it were at a bound from the 
ruins of a republic to the throne of an empire" (p. 376) ; and he 
might have added that in the same country, at a later period, another 
republic was ruined in a way which made the warning still more strik- 
ing. But Mr. Boutwell's confession is fuller yet. In the following 
passage (p. 375) he makes a tolerably clean breast of it. Speaking of 
the "general disinclination of the American public mind to the elec- 
tion of the same person to the presidency a third time," he goes on to 
say : " It is, however, as old as the Government. It had its roots in 
the experience of the colonists. In Europe hereditary power had fos- 
tered standing armies, and standing armies had maintained hereditary 
power. Both were the enemies of personal liberty and popular rights. 
It was the purpose of the founders of our Government to render 
standing armies unnecessary, and the possession of hereditary power 
impossible. If the experience of a century is an adequate test, the 
end they sought has been attained. They had observed, also, that the 
possession of power, by virtue of office, for unlimited periods of time, 
tended to the establishment of dynastic systems, and to their recogni- 
tion by the people. Hence, provision was made in all our Constitu- 
tions, State and national, for frequent elections in the legislative and 
executive departments of Government." 

This certainly is as plain an acknowledgment as can be made that 
continued re-election is dangerous to personal liberty and popular 
rights, and that the two-term limitation, or something equivalent, 
is necessary to save the Government from subversion by standing 
armies and hereditary power. The rule we contend for is, therefore, 
wise and salutary, the third-termers themselves being judges. Not 
only is that settled : it is undeniably fixed that the custom has all the 
other requisites of a good and valid custom — age, notoriety, constant 



POLITICAL ESSAYS AND LETTERS. 397 

observance, and consistency with previous regulations. For those 
reasons it is and must be a vahd law, technically as well as morally 
binding on the country. No American citizen who obliges himself, 
by oath or otherwise, to obey the laws, can honorably violate this 
rule or counsel opposition to it, for it is not only law, but fundament- 
al law — lex legum — a law of laws — confessedly necessary to preserve 
all others from destruction. 

Mr. Boutwell begs the whole question when he says that the ap- 
prehension so universally felt of great danger from repeated re-elections 
of the same person did not lead the founders of the republic to the 
adoption of a system which limited the right. It did lead them to 
that very thing. The written Constitution is silent, to be sure, but, 
on the earliest occasion after it went into operation, the omission was 
supplied by a custom which then became, and now is, a part of our 
system as much as anything else it contains. 

Without summing up Mr. Boutwell's confessions, it will be plainly 
seen by every reader that he has yielded all points. The third-termers 
put up the best man they could find to defend them, and he honestly 
but reluctantly gives away their case. It requires some boldness to 
ask for a judgment after that. But Mr. Boutwell's courage is not 
wanting in the last extremity. The two-term rule may be I'iglit in 
law and morals, but ho despises it ; it may be strong, but his determi- 
nation to break it down is irrepressible. 

One argument, totally apart from the merits of the question, is 
used with immense success by Mr. Boutwell and all third-termers who 
have written or spoken on the subject. Not one of them neglects to 
urge with all his might that o^jposition to a third term and General 
Grant is a sentiment almost if not quite universal with Democrats. 
This converts our rancorous enemies by the score : an appeal to blind 
partisan malice is never made in vain. In this discussion and for the 
present jourposes of strong government it is the most irresistible of all 
arguments, more potent than Cicero's best oration, more effective than 
all the logic of Aristotle, more powerful than the eloquence " that shook 
the arsenal and fulmined over Greece." 

We have no answer to this charge of democracy. With all humil- 
ity we plead guilty, and throw ourselves on the mercy of the third- 
termers. We are Democrats. AVe believe in the Constitution, and 
in the sanctity of an oath to support it ; in the traditions of the fa- 
thers, and the principles of free government as settled by them. We 
have held fast to this faith. We never surrendered or sold or gave up 
our heritage. When it was stolen from us we cried out upon the rob- 
bery, and reclaimed our rights as soon as reclamation was possible. 
In the courts we struggled with our utmost strength for the restora- 
tion of trial by jury and the privilege of habeas corpus ; on the hust- 
ings, in popular conventions, and in legislative assemblies we protested 



398 POLITICAL ESSAYS AND LETTERS. 

against the domination of carpet-bag thieves, and exposed remorse- 
lessly the dishonest measures by which we saw tlic public treasury 
plundered. We thought it a good tradition of the fathers that the 
military power should be subordinate to the civil authority ; and, 
when we saw elections carried by the bayonet. Legislatures forcibly 
tumbled out of their seats, and the basest scoundrels in the country 
placed by brute force in the offices to which honest men had been 
elected, our sense of right and justice was shocked beyond expression. 
We thought the right of the States to elect their own officers and their 
own representatives in Congress by the free suffrages of their own peo- 
ple was clear as the plainest constitutional law could make it. We 
therefore looked with loathing on the systematic violation of this great 
right, carried on for years by the Federal Administration ; and none 
of us could be reconciled to the great swindle of 187G by which the 
whole nation was basely cheated. 

This is what democracy has led us to. Doubtless we are great sin- 
ners in the eyes of Mr. Boutwcll. Not to have given up these princi- 
ples is a crime for Avhich he can not forgive us. But he ought not to 
blame us too bitterly. We could not help it. We were brought up 
to revere the founders of the republic, and to obey the laws and cus- 
toms which they handed down to us. Instinctively and by habit we 
loved free institutions, honest observance of oaths, and good faith in 
the execution of public trusts. In all this Mr. Boutwcll differs from 
us toto cmlo. But can he not make some allowance for our prejudices 
against fraud, perjury, and corruption, unreasonable as those preju- 
dices may seem to his superior Avisdom ? It is hoped also that he will 
be somewhat conciliated when he recollects that our delusions are en- 
couraged by a very general concurrence in them : the white men of 
the Union by a million majority expressed their approbation of our 
views at the last presidential election, and even negroes by the hun- 
dred thousand refused to condemn them. Moreover, it is not true 
that Democrats alone are opposed to a third term. Republicans — a 
large majority — not knaves and cowards, and not "metallic calves," 
but the best men in the party — are as much opposed to it as we are. 
This consideration should silence Mr. Boutwell's mere partisan rheto- 
ric, disarm his wrath at once, and "check his thunder in mid-volley." 

lie strikes another blow which hits us hard. He says, in effect, 
that the old Government is so battered up that no respect ought now 
to bo paid to any principle of its founders. I quote his words (p. 273) : 
"We have changed, indeed in some particulars we have annihilated, 
the Constitution of Washington, the Constitution of the Fathers. . . . 
And is the unwritten law more sacred ? May the people annul the 
written law of the fathers, and still be perpetually bound ly their tra- 
ditions 9 " 

This is extremely well put, " with good emphasis and good discre- 



POLITICAL ESSAYS AND LETTERS. 399 

fcion." I am compelled to admit that they (Mi-. Boutwell and his 
political associates) have annulled the Constitution, not in some, but 
in all particulars. No line or letter of it has escaped their destructive 
hands. Every right of the States and all personal liberty liave been 
wantonly outraged. Trial by jury, habeas corpus, free speech, the 
elective franchise, everything that tended to promote the great objects 
for which the Constitution was made, Avere trodden down. The mili- 
tary was placed above the civil authority, and the power continues to 
be claimed for standing armies to ''shed the blood of war in peace." 
To nullify the most important part of our great charter, a bill of pains 
and penalties against ten States and eight millions of people was forci- 
bly injected into the bowels of the Constitution itself, and there it lies 
to this day, side by side with the provision which forbids its existence. 
Certainly I agree with Mr. Boutwell that the writtcu instrument by 
which our fathers sought to secure the blessings of liberty to them- 
selves and their posterity has been wholly set at naught, and his tone 
of triumphant interrogation is not out of place when he asks, " Is the 
unwritten law more sacred ? " Assuredly it is not. A conscience 
which is hardy enough to spurn the restraints of the Avritten Consti- 
tution need not affect any remorse for refusing to accept a tradition. 
Having swallowed tliat camel, it is but the folly of the Pharisee to 
strain at this gnat. 

But Mr. Boutwell, being a charitable and fair man, will, I am sure, 
excuse us for adhering to the tradition, though it be connected with 
the Constitution which his party has broken and dishonored. AYe see 
the whole subject from another point of view. We expect the restora- 
tion of popular liberty ; we hope soon to replace our institutions upon 
the firm foundation which our fathers laid. We have already made 
much progress. Many of our violated rights have been vindicated in 
the courts ; oppressors have been scourged back into private life ; the 
thieves who ruled us for tlieir pleasure and plundered us for their 
profit are on the run ; a majority of the States, both Houses of Con- 
gress, and the unbroken heart of the nation are with us ; and but for 
the atrocious fraud of 1876 no remnant of Asiatic despotism would 
disgrace this country now. Tlie argument that the two-term rule is 
useless to uphold institutions already overthrown will become plainly 
inapplicable when the structure is completely rebuilt. When the ship 
of state is again put on her constitutional tack, this traditionary rule 
of navigation will be as necessary as ever to make her course true and 
her progress safe. 

There is another reason why we can not afford to abandon any 
custom which favors civil liberty, even if the written Constitution be 
considered as hopelessly abolished. Our fathers were freemen before 
the Constitution ; that instrument defined certain pre-existing rights 
established by custom, and provided an organization for defending 



400 POLITICAL ESSAYS AND LETTERS. 

them. Sui^iioso the definition to be obliterated and the defenses thrown 
down, would that make ns slaves ? No ; in that case we would fall 
back on the unwritten law. We would stand upon the colonial cus- 
toms, or seek protection under the common law, tracing it, if need bo, 
to the reign of Edward the Confessor or Alfred the Great, or finding 
its sources in the still older customs of our German ancestors. If all 
this fails, we will ai)peal to the great unwritten law of Nature — the 
law that Hooker speaks of when he says, "Her seat is in the bosom 
of God, and her voice is the harmony of the world." 

Americans who are true to themselves and one another can not 
afford to give up a custom Avhicli is "j)art of our free institutions," 
merely because previous wrongs have deprived them of other parts. 
On the contrary, the losses already sustained should make us cling all 
the more closely to what is left. This excuse of Mr. Boutwell for his 
proposed violation of the two-term rule will pass for a good one only 
with men who are hostile to all free institutions. 

Here rises the most important of all questions : What is the ulti- 
mate object of the third-termers ? Why these desperate efforts to push 
on a third-term candidate in the face of an opposing sentiment ex- 
pressed by all parties, manifesting itself in all places, and certain to 
be felt at the polls if the election be a free one ? Friends of republican 
government, who respect the popular will, could not act thus. Even 
demagogues, who want votes as a mere means of getting offices and 
jobs, do not usually endanger their own success by dragooning the 
common file of their supporters. AVithout the principle of patriots, 
without the 2:)rudence of partisans, the third-term men must have 
some purpose inconsistent with both. The general belief is, that they 
mean to force the nomination of Grant, then coerce a false count of 
the votes, and finally subjugate the nation to their personal rule. If 
this prevailing opinion be erroneous I am not responsible, for I have 
been among the last to adopt it. But there certainly is some evidence 
tending to show that the designs of the Grant men are at enmity with 
existing institutions, and so far revolutionary that they would be called 
treasonable if treason here, as in England, consisted in seeking to com- 
pass the death of the Government. 

At a very early period in our history the enemies of republican 
principles were thoroughly equipped, and entered actively upon the 
struggle for supremacy. Some of them got into the Convention which 
framed the Constitution. At their head was Hamilton, who laid be- 
fore the body their whole plan for a central government, which, if 
adopted, would have completely extirpated the rights of the States 
and the liberties of the people : a Chief Executive for life, unimpeach- 
able for any misconduct ; a Senate for life ; a triennial House of As- 
sembly ; a Federal judiciary "for the determination of all matters of 
general concern " ; the Governors of the States to be appointed by the 



POLITICAL ESSAYS AND LETTERS. 401 

President. Of such a government, the tyranny and corruption must 
have become perfectly unendurable if administered, as it was expected 
to be, by the men who proposed it ; and doubtless it would, in a very 
short time, have led to a monarchy in name as well as in substance. 
But the Ilamiltonian plan was defeated, and under the auspices of 
Washington, Madison, and their compatriots the present system was 
framed, by which certain powers, specifically enumerated, are bestowed 
on the General Government, while all others are expressly reserved to 
the States and the people ; and this system is to be administered by 
agents of the people's choice, strictly acconntable, subject to frequent 
rotation, and sworn to keep within the limits of their legal authority. 
This government, so simple and so clear, so definite in all its arrange- 
ments of power, and so guarded against abuse, was hailed at home and 
abroad as the best result of political wisdom that the world ever saw. 
I devoutly believe that the estimate of its friends was right, but I have 
no eulogy to make on it now. I merely claim that our obedience to 
it is due as a moral necessity. If a sworn officer willfully violates it, 
he is guilty of perjury ; if its commands be habitually disregarded, 
the nation is politically ruined, and the people are defrauded of their 
rights. 

But from the very first it had enemies, who tried to subvert it 
and substitute in its place the reign of arbitrary power. There has 
always been an unprincipled faction, composed of persons who tried 
to rid themselves of the wholesome limitations which protected the 
equal rights of the States and the people. By frequent changes of 
name and the assumption of new shapes, by appeals to tiie baser 
passions, by combinations of special interests, by plausible but false 
interpretations of the fundamental law, by adroitly taking advan- 
tage of accidental circumstances, they have often succeeded in 
"drawing much people after them" — people who really loved free 
institutions, and had no intention to destroy the Government or 
depart from the traditions of the fathers. When their designs be- 
came known, the honest portion of their followers have uniformly 
fallen away from them. Perhaps no instance of this is more strik- 
ing than the direct and positive refusal of the great mass of the 
Eepublican party, in 187G, to endure the nomination of General 
Grant for a third term. 

That the present movement to that end means simply a conspir- 
acy to wipe out the Constitution once for all, and have done with 
its restraints upon arbitrary power, is proved in so many ways that 
it admits of no doubt. It is publicly urged by all its friends for 
the sole reason that General Grant is a strong man. In the cases of 
Caasar, Cromwell, and both the Napoleons, strength was the qual- 
ity for which they were elevated to absolute power. It is the might 
of the ruler that overcomes the right of the people whenever a re- 



402 POLITICAL ESSAYS AND LETTERS. 

public is to be strangled. Strength that governs with a rod of iron 
is always the recommendation of one who is to be made a monarch, 
insomuch that the word '' king " {Koenig) signifies, in the language 
we take it from, exactly what General Grant's adulators habitually 
call him — the strong man. 

But the strong-government idea has been set forth by its pro- 
jectors in various authorized publications, manifestly intended to 
prepare the minds of the American people for the advent of des- 
potism. Before Napoleon mounted the throne, certain well-remem- 
bered articles appeared in the "Moniteur" to foreshadow the empire 
that was coming, to prove that a republic was too weak to be com- 
patible with the interests of France, and to show that nothing would 
do but the strong government of one strong man. Precisely simi- 
lar were the approaches of the other Bonaparte to absolute power. 
Here we have almost a repetition of those French articles. One of 
these, anonymous, but printed in a magazine of high authority, de- 
scribes the Constitution of the United States as an effete system, 
adjudges State sovereignty to be treason, declares the masses of 
the Northern Democracy unfit for self-government, anticipates that 
the South will cease to be formidable after the next census, and then 
gives a picture of the good time coming, when a central Government, 
with the States under its feet and the people at its mercy, shall exer- 
cise a controlling supervision over all elections, and regulate all domes- 
tic subjects down to marriage and divorce. What sort of a head this 
strong Government shall have, or how he shall be called, is not dis- 
closed ; but we are told to look for a change in the mode of choosing 
him, the present plan being antiquated and clumsy. 

But the most alarming evidence I have seen that the friends of 
a "third term and General Grant" are plotting the overthrow of 
the Constitution is in Mr. Boutwell's own article. He knew when 
he wrote it that designs utterly hostile to our free institutions were 
imputed to him, his faction, and his candidate ; that the accusation 
was believed by very many of the most influential men in the Ee- 
publican party ; and that it was almost universally thought to be 
true by the Democrats. He could not help but see, in the paper 
which he was undertaking to answer, that the strongest objection 
to the movement for Grant was its anti-constitutional purpose. He 
was also fully aware that nineteen twentieths of tlie American people 
are true to tlie Government of their fathers, which they desire to see 
honestly administered, and are totally opposed to any kind of personal 
rule stronger than the laws. Yet Mr. Boutwell puts in no word of 
denial. Why does he stand mute under a charge which so seriously 
affects, not only the political, but the moral integrity of himself and 
his associates ? No sane man can hesitate for a moment to interpret 
this silence as a consciousness of guilt. 



POLITICAL ESSAYS AND LETTERS. 403 

But, besides this dumb eloquence, there is something more in that 
same paper. 

In all countries and in all ages it is the uncontrollable impulse 
of public oppressors to call every man a traitor who is not willing 
to be a slave. In the eyes of the usurping tyrant and his sycophant- 
ic flatterers the most odious crime that can be committed is the 
assertion of his legal rights by a freeman. Tliis crime Mr. Bout- 
well charges upon the Democracy, and gloats over tlie punishment 
they will get for it. He says (p. 373) that " the spirit of relelUon, 
of resistance to the Constitution, is manifested by a large class of 
citizens. These citizens, without exception, are Democrats, and they 
receive aid and encouragement from the Democratic party." 

Of course, I will not vouch for the absolute perfection of every 
individual who claims to be a Democrat. But that Democrats, as 
a body, or by party concert, liave resisted the Constitution in any 
manner, or that they have not submitted even to tlie unconstitu- 
tional tyranny of the Federal Government with entire passiveness, 
is a falsehood so vile, so gross, and so palpable that I will not be- 
lieve Mr. Boutwcll meant to assert it. What he did mean Avas to 
say that we have claimed our just rights by legal and peaceful ap- 
peals to the public conscience, in the courts and on the rostrum, at 
the polls, and through the press ; and lie but speaks after his kind 
when lie calls this the ''spirit of rebellion," for, according to his 
theory, lawful opposition to unlawful power is always constructive 
rebellion. He is consistent with his creed when he warns us that 
this spirit shall be wholly extinguished, and that Democrats for 
indulging in it shall be remitted to a state of abject slavery, and 
deprived of all right to control their own affairs, either political or 
private ; and, to that end, all traditionary notions of liberty, equal- 
ity, and fraternity are to be set aside. *'It is the purpose of the 
Republican party," says Mr. Boutwell (page 373), " to suppress that 
spirit, to render it poiuerless ahsolutely , both in personal and public 
affairs, and it may happen that in accomplishing this result the 
example of Waslmigton and the tradition of the fathers will le dis- 
regarded.^' While I do not think that a majority of the Republi- 
can party would assist for one moment in carrying out this brutal 
threat, Mr. Boutwell is ample authority for the belief that the Grant 
leaders are not only insolent enough to utter it, but base enough to 
execute it, if they ever get a chance. 

It is plain enough what prompts them to these desperate meas- 
ures. When the elective franchise was given to the negro they 
thought they had legalized a sure mode of stuffing the ballot-boxes, 
and, so sustained, strong government promised to itself a life with- 
out end. But in the course of time the negroes ceased to stuff, and 
some of them began to vote. This was so contrary to all previous 



404 POLITICAL ESSAYS AND LETTERS. 

calculations, that the friends of strong goYernment could not realize 
it ; they tliought it must be caused by some mysterious application 
of physical force. To this day Mr. Boutwcll is unable to compre- 
hend the possibility of a free negro voting of his own head against 
a carpet-bagger Avho has robbed him, against a Freedman's Bank 
tliat has swindled him out of his earnings, or against a scurvy poli- 
tician who has cheated him by false promises of forty acres and a 
mule. Therefore, he believes in the chimera of a bulldozer as much 
as Cotton Mather believed in witchcraft, and swallows as greedily 
the false and unreasonable evidence which feeds his credulity. He 
declares in this article that in the Southern States ** any number of 
citizens are as a public policy of communities and States deprived of 
their civil rights " ; that offices are held there, and power wielded, 
*' through proceedings that are systematically tainted with fraud or 
crimsoned with innocent blood" ; that "one vote of a white citizen 
in South Carolina is, as a fact in government, equal to three in Mas- 
sachusetts, New York, or Illinois " ; that there are jiersons in Con- 
gress who have no right to their seats, " and these persons consti- 
tute the majority in both branches." These monstrous outrages 
upon the known truth admit of one excuse and only one — Mr. Bout- 
well believed them. 

But tlie sincerity of his belief in these false statements is no 
excuse for the pretense he makes of honest indignation. That is a 
sham, and he knows it. He and his collaborateurs in the strong- 
government enterprise (including the strong man himself) have no 
conscientious objections to false or forced elections. They have no 
respect whatever for the right of the people to choose their own 
officers. State or national. The strength for which they laud their 
chief so extravagantly was never exhibited during his presidency, 
except in coercing voters, suppressing true returns, or otherwise 
defeating the legal expression of the popular will. Mr. Boutwell 
is, therefore, in no condition to speak on this subject as an accuser 
of others ; the beam in his own eye disqualifies him to hunt for 
motes in the eye of his brother. Nor could he do General Grant 
any good even by showing that elections are now unfairly con- 
ducted. We desire, above all things, to have a free poll and a fair 
count, and we are much afraid that we will be permanently deprived 
of our right ; but we do not look to Grant for redress or remedy. 
We do not trust the arch enemy of honest elections to purify the 
ballot-box; for that would be ''casting out devils by Beelzebub, 
the prince of devils." 

I will make Mr. Boutwell a proposition. If he will name any kind 
of violence or intimidation which the Grant faction have not used to 
prevent a true poll, or any form of fraud which they have not prac- 
ticed to falsify returns, or any sort of cheating in the count which they 



POLITICAL ESSAYS AND LETTERS. 405 

have not resorted to, or any species of the crimen falsi which tlicy 
have not perpetrated as a means of swindling the majority ; if they 
have not tilled the seats of Congress with impostors whose object it 
was to misrepresent, injure, and degrade the States they pretended to 
come from ; if they did not falsely procure the election of infamous 
men to every kind of State office, or when defeated put them in pos- 
session and maintain them there by force of arms ; if they did not 
in 1876 defeat the known will of the nation by a most stupendous 
swindle — if Mr. Boutwell can show that these things and others like 
them were not done at divers times and places, under the auspices and 
with the approbation of General Grant and those friends of his who 
are now pushing him for a third election, then I will give up the 
whole case and promise to vote for his candidate. There ! he has a 
chance to make one vote, without the risk of losing his own ; for, if 
he fails, I will not ask him to vote my ticket ; I will merely insist that 
he shall not hereafter turn up the whites of his eyes and pretend to be 
wounded in his virtuous soul, when a fugitive carpet-bagger tells him 
how he had to drop his plunder and fly for his crimes, because negroes 
were bulldozed at the South. 

General Grant's own history and character as a civilian make it 
certain that those who support him are enemies of free and honest 
government. These third-termers are not madmen. They have tried 
Grant, and they know what he is good for. Those acts of deadly hos- 
tility to the Constitution which distinguished the period of his Ad- 
ministration they expect him to repeat. Those atrocious corruptions 
which made it the golden ago of the public plunderer they look for 
again. I affirm that they intend this, not because they have said so in 
words, but because, being sane men, they can intend nothing else. 

Doubtless ho is a strong man — not mentally or morally strong — 
but quite strong enough with an army at his back to spuru the re- 
straints of law and break over the Constitution. It took a strong man 
to make such governors, and judges, and treasurers, and legislators as 
he made for the States, and to hold them in place by the bayonet ; to 
force elections against the will of the electors, and to inaugurate a 
President who had been rejected by the people. 

One manifestation of his strength has hardly excited so much ad- 
miration as it deserves from his followers. During his last term he 
took from tlie Treasury, in flat defiance of the Constitution, one hun- 
dred thousand dollars in addition to the hundred thousand which was 
his legal salary. There Avas a transaction of Caesar's with the Eoman 
treasury not dissimilar to this — and Cassar was a strong man ; but 
Grant, more than Cassar, showed that peculiar contempt of law which 
by his admirers is supposed to be strength. 

Sometimes they tell us that he is not only strong, but faithful. 
Faithful to what ? To his own breeches-pocket ; to the rich men who 



406 POLITICAL ESSAYS AND LETTERS. 

made him presents ; to the carpet-bag thieves whom he fastened on 
the Southern States; to the corrupt rings that supported him in the 
North ; to the returning boards who forged election-papers to suit 
him ; to the tools of the vulgar force which thrust his fraud down the 
throat of the nation — to all these he was faithful enough ; but faithful 
to the Constitution and laws he never was. From beginning to end 
of his Administration he was treacherous to the most sacred trust that 
human hands can hold. 

This is no railing accusation against General Grant, no harsh con- 
struction of his past acts, no detraction from his claim to a certain 
degree of personal respectability, no proof that as a despot he would 
not do as well as another. He is a mere soldier, with no knowledge 
of law and no conception of the purpose for which civil institutions 
are made. When elected President, he took the Government on his 
hands as a mere job to be done for the interests of those who employed 
and paid him, without caring what rights of other persons might suf- 
fer. Horace's description of a military chief governing strongly in 
civil affairs has never in modern times been so perfectly realized : 

" Jura iiegat sibi nata ; nihil non arrogat armis." 

He did not stop to inquire what was in that Constitution which he 
swore to preserve, protect, and defend ; if he had taken an oath to 
destroy it, his hostility would have been neither less nor greater. If 
there be one provision of the Federal compact more perfectly clear 
than any of the others, it is that which reserves and secures to the 
States all sovereign authority, jurisdiction, and powers, except what 
are specifically enumerated and expressly given to the General Govern- 
ment ; but, clear as this is. General Grant never could see it. When 
a politician came to him (especially if he came with a present in his 
hand), and told him that the States had no rights, and the doctrine 
of State sovereignty was mere treason, he believed it firmly and acted 
accordingly. He himself has furnished conclusive proof that, when 
he stretched forth his rapacious hand and took from the public treas- 
ury a hundred thousand dollars more than his lawful salary, he had 
never read or heard about that part of the Constitution which forbids 
the compensation of a President to be increased "during the term for 
which he shall have been elected." It probably never struck him that 
it was bribery to accept money and lands and goods from men whom 
he immediately afterward appointed to the highest offices in his gift. 
When to this is added the proneness of ignorant ambition to that 
CjBsarean rule of ethics which declares everything right which is done 
regnandi causa, you have a character dear to the heart of strong 
government, but utterly unfit to be trusted by a people who desire to 
be free. 

However that may be, all evidence shows that the object of pushing 



POLITICAL ESSAYS AND LETTERS. 40T 

General Grant for a third term is not to give us an honest and legal 
administration of our j^ublic affairs, but to set up some system of ab- 
solutism without law, or, as Mr. Stevens said, " outside of the Con- 
stitution." What form or title shall it have ? If its projectors suc- 
ceed, will they give us an imperial despotism, open and avowed ? Or 
will they curse us with the heavier and more degrading affliction of a 
rotten republic ? 

If my soul could come into their counsels, or mine honor be joined 
unto their assembly, I would tell them that their success now will 
bring them hideous ruin in the long run. For a little while it may 
increase their fortunes, or swell their personal consequence, and gratify 
their contemptuous hatred of the States and people under their arbi- 
trary rule. But strong government is a weak contrivance, after all, 
and never lasts. Its front is of brass, but the feet it stands on are al- 
ways made of clay. Let those who would identify their interests with 
Grantism think well how unsafe is the protection they are seeking. 



THE ELECTOEAL VOTE OF LOUISIANA.* 

To the Editor of The Union : 

I COMPLY with the request to state my views concerning the elect- 
oral vote of Louisiana, in the hope that I may thereby do some little 
service to the cause of peace, good order, and honest government. 

By the Federal Constitution and the laws of Louisiana the peo- 
ple of that State in their primary capacity (and they only) have a 
right to appoint electors of President and Vice-President. This power 
has been executed at tlie time, at the places, and in the way prescribed 
by law. In accordance with the universal law of all elective govern- 
ments, the intent and will of the whole people as a body is spoken 
by the majority of the ballots. They did appoint the Tilden candi- 
dates. Their decision to that effect was spoken by a large majority, 
in the prescribed way, with loud emphasis. 

Nevertheless, certain State officers of notoriously bad character 
have conspired among themselves and with other evil-disposed i^ersons 
to hinder and prevent the appointees of the people from performing 
the duties assigned to them by their constituents and to organize an 
electoral college comj)osed of other persons having no authority except 
what they derive from the fraudulent favor of the conspirators them- 
selves. All this is done to the intent and with the design that a false 
vote concocted by a bogus body may be sent up, cast, and counted as 
if it were (what it is known not to be) the true vote of the State, 
* Washington, D. C, "Union," December T, 1876. 



408 POLITICAL ESSAYS AND LETTERS. 

certified by the true electors. If it be so received and treated by the 
other States and their representatives, then a rule is establislied which 
takes the i)owcr of choosing our Chief Magistrate out of the hands in 
which tlic Constitution is supposed to have placed it, and gives it, 
without reservation, to any combination of swindlers who may, by 
fraud or force or accident, get the machinery of a State government 
into their possession. If this be submitted to without opposition, and 
as a wrong for which there is no legal remedy, it is not probable we 
will ever have an honest election again. 

What I have here said is a very moderate statement of the case as 
alleged by the Democrats of Louisiana, and by other perfectly reliable 
gentlemen, Avho have carefully investigated the subject. They declare 
that they can prove the averments here made, with aggravations tend- 
ing to deepen very much the criminal coloring of the acts done and 
contemplated by their adversaries. I assume that they will in due 
time furnish to Congress and to the country such proof as will justify 
these allegations and establish their truth. 

The question then arises whether there is or is not some legal au- 
thority by which this frightful wrong can be remedied. If the Con- 
stitution has not given to somebody the right to arrest a fraud before 
it defeats the known and legally-expressed will of the people on such a 
subject, then they have retained it in their own hands, and they must 
compel obedience by their own physical force, or else surrender their 
right of self-government altogether. A construction of the law which 
logically leads to such a conclusion can not be the true one. In Eng- 
land a disputed title to the crown can only be determined by civil war. 
But surely our wise forefathers did not intend to put themselves or us 
— their posterity — in that forlorn condition. They certainly meant 
that a spurious claim to the Presidency should be set aside in some 
peaceable way by a judgment whose authority all must respect, and 
without a resort to the ultima ratio regum . 

In opposition to this view of the case, there are those who seem to 
expect that General Grant will take it upon himself to settle the con- 
troversy with the aid of the army. In ordinary times this notion 
might be treated with derision. But our President for the time be- 
ing has superintended State elections with the bayonet, seated Gov- 
ernors who were not elected, tumbled legislative bodies out of their 
halls, and done divers other things which show that he has very curi- 
ous views of his own j)owers and duties. Still, it is not likely that he 
will carry things to the point of making war upon the peojile for 
electing Tilden, or upon their representatives for refusing to count 
fraudulent votes in favor of Hayes. On the contrary, it is to bo 
hoped most devoutly that when Tilden is declared by the proper 
authority to be duly and constitutionally elected, he will cease en- 
tirely from all lawless meddling with the business, and respond favor- 



POLITICAL ESSAYS AND LETTERS. 409 

ably to our earnest and heartfelt prayer for peace. "Let us have 
peace. " 

Those who desire to make this particular fraud successful, and to 
establish a precedent which will make fraud omnipotent hereafter, 
take the bold ground that any pa})er purporting to be a certificate of 
the electoral vote, if sent up to the President of the Senate, and by him 
opened in the presence of both Houses, must be taken as infallibly 
true — subject to no scrutiny and open to no contradiction. This is 
in square conflict with the uniform practice of the Houses ; it is in- 
consistent with the rules which they have deliberately adopted for the 
exercise of their power and the performance of their duty on such 
occasions ; it is opposed by the opinions of great leading men in the 
past as well as in the present generation ; it has no warrant in the 
words of the Constitution ; it is utterly at variance with the reason of 
the thing, and it grossly violates the right of the peoi:)le to be protected 
by their representatives against imposture and villainy. 

The duty assigned to the President of the Senate is very simple. 
The certificates being sent to him, he must keep them, as he gets 
them, in faithful custody and close under seal until the day of open- 
ing, and then he must open them in the presence of both Houses. 
When that is done his special function is finished. Because he keeps 
the i^ackagcs containing the certificates, and is authorized to break 
the seals on a day fixed, is he, therefore, to pass upon their validity 
and force the Houses to receive and count them contrary to their con- 
victions of justice and truth ? It might as well be said that the mes- 
sengers who bring them up have this kind of power. 

The votes, being opened, shall then be counted. The Constitution 
does not say in express words by whom the count shall be made. But 
the rule of construction which gives the authority to the Houses and 
withholds it from the President of the Senate is very plain. Judicial 
power is never inferred from the bestowal of a ministerial duty. When 
a written law requires evidence to be produced, the weight and value 
of it is always to be decided, not by the officer or person who brings 
it, but by the one to whom it is brought, and before whom it is laid. 
Else why bring it at all ? A habeas corpus law commands that the 
sheriff shall bring the body of the prisoner before the court or a judge, 
together with the cause of his detention, and requires that the prisoner 
shall then be bailed, remanded, or discharged, as justice may require. 
By whom ? Certainly by the court, and certainly not by the sheriff. 
An executor shall lay his accounts before a court of equity, and they 
shall then be confirmed, corrected, or modified. The statute does not 
say by whom the decree shall be made, but it is absurd to suppose that 
it can be made by anybody except the chancellor. Depositions taken 
in a foreign country, under a commission or letters rogatory, are by 
statute to be sent under seal to the clerk of the court, who shall open 



410 POLITICAL ESSAYS AND LETTERS. 

tliem in presence of the court when the cause is called. Does that 
give the clerk power to pass judgment upon them ? These supposed 
cases are given for the mere purpose of illustration, and they show by 
clear analogy that the votes of the States for President and Vice-Presi- 
dent are to be counted by the Houses — counted in their presence, in 
their sight and hearing, under their supervision and control — and truly 
counted according to their judgment and conscience. 

The right, power, and duty of the Houses is to count the true votes 
of the States only, which, of course, covers and includes the duty of 
rejecting false votes from their count, if it be known that spurious votes 
have been placed among them by accident or design. 

For certain reasons, which will be given presently, it is jilain to us 
that in case of disagreement between the two Houses concerning their 
duty to count or reject a vote, the judgment of the Senate must pre- 
vail in regard to the Vice-Presidency, and that of the House on the 
Presidency. Before coming to that, however, we are to consider upon 
what grounds either House, or both together, can act in rejecting a 
vote. 

It is claimed that the certificate of the State officers, if it be in due 
form, imports absolute verity — must be taken as infallibly true, and 
can not be questioned or disputed. This is true doubtless. Congress 
is not a national returning board, and can not sit to hear appeals from 
the returning boards of the States — can not rejudge the justice done 
by the State authorities, or correct their errors. The decision, if it 
be a decision, of the State authorities is as conclusive and binding on 
all the world, including Congress, as the judgment of a court of last 
resort upon a subject within its exclusive jurisdiction. 

Congress is bound, therefore, to count the Louisiana vote, unless 
some fact be shown against the certificate which proves it to be not 
merely erroneous, but void. If the vote comes up from a body of men 
pretending to be electors, but who in truth have never been appointed 
as such according to the laws of the State, their act must certainly be 
treated as a nullity. Men can not constitute themselves electors, nor 
be constituted by anybody else except the proper appointing power. 
Suppose the power of appointment to be in the Legislature. The 
Legislature, in the prescribed manner and at the proper time, makes 
its appointment by a clear majority of its votes, which are duly re- 
corded and certified by its officers. Yet the Governor, not only with- 
out the consent of the Legislature, but in defiance of its expressed will 
to the contrary, fixes up a different set of men as an electoral college, 
and gets them to cast their vote as the vote of the State. Is there an 
honest man in the country who would be willing to promote the object 
of such a proceeding by counting the vote of such pretended electors ? 
The case under consideration is precisely analogous to this. Here the 
power to appoint is in the people who have exercised it ; their votes 



POLITICAL ESSAYS AND LETTERS. 411 

are counted and recorded decisively, showing their designation of cer- 
tain persons as their appointees. But the Governor dishonestly takes 
upon himself and seven associates the duty of voting for President in 
the name of the State. If this be not a mere bogus college of electors 
what would be ? If these men can cast the vote of the State, what is 
to hinder any other eight men from doing the same thing ? 

The right of Congress to throw out the vote of persons not duly 
appointed has never been denied in the cases of Territories not fully 
admitted as States, or of States supposed to be out of the Union as a 
consequence of their rebellion. If you reject the votes of electors be- 
cause the State could 7iot appoint, a fortiori, you must reject the votes 
of electors whom the State could appoint, but did not. And the 
principle applies a multo fortiori to the case of persons to whom the 
appointing power ex^Dressly refused the trust and bestowed it on others. 
Indeed, no absurdity could be more palpable, and none could lead to 
worse consequences, than a decision that the vote of a State must be 
taken as it is thrown by any set of persons who claim to do it, without 
regard to the authority which they hold or the source from whence 
they derive it. If that principle prevails, what is to be the predica- 
ment of things when two or three or a dozen sets of electors all claim 
the right to vote, and all send up their certificates in apparently 
proper form, and all are laid before Congress by the President of the 
Senate ? 

It will certainly not be denied that Congress may inquire into the 
genuineness of any certificate produced by the President of the Senate. 
If it is known to be a mere forgery, all men of common integrity will 
say with one voice that it must not and shall not be counted. That 
being settled, let us see what follows in the case under consideration. 

Forgery is the fraudulent making or alteration of a writing to the 
prejudice of another's right. If the returning board and Governor of 
Louisiana willfully, fraudulently, and ' falsely make a certificate that 
certain persons therein named had a majority of the popular votes, 
knowing the fact to be otherwise, they bring themselves literally within 
this definition. The books on criminal law teach that an indictable 
forgery is proved when a paper, though signed by the hand of the 
proper person, and not afterward altered, is brought into contact with 
any trick or imposture practiced by or upon the maker of it. Thus, 
a note for a thousand dollars, signed by an illiterate man on the assur- 
ance that it binds him to pay only five hundred ; a will drawn con- 
trary to instructions and misread to the testator ; a deed antedated 
with the consent of both parties to affect injuriously the rights of 
others — these are held to be forgeries by all the text writers on crimi- 
nal law, from Coke to Wharton. The judicial decisions, however, in 
England and America are not uniform on this point ; and I admit the 
better opinion to be that an indictment for forgery can not be sus- 
27 



412 POLITICAL ESSAYS AND LETTERS. 

tained without proof of an actual false making of the paper, in whole 
or in part, a simulation or counterfeiting, which gives it the ajipear- 
ance of heing made by somebody who did not make it. But this latter 
rule applies only to private papers, and would hardly save the Louisi- 
ana conspirators, if indicted for forgery in the fabrication of false 
election returns. It has never been held that an official certificate, in- 
tended for a fraudulent purpose, and known to be false, is not a forg- 
ery. An auditor of the Treasury certifies to a balance in favor of a 
person whom he knows to be not a creditor, but a debtor of the Gov- 
ernment, with intent to defraud the public ; a justice certifies that a 
deposition was sworn to before him by a person whom he never saw ; 
the clerk of a court certifies to false naturalization papers. These 
ought to be, and would be held for forgeries. A commissioner, super- 
visor, or inspector of election whose duty it is to count the ballots at 
a particular polling-place fabricates a certificate, signs and returns it 
in total violation of what he knows to be the truth ; how would he 
fare in a court if indicted for forgery ? But suppose the returns to 
be honestly made to the central authority of the State, where the Gov- 
ernor, secretary, or special board of canvassing officers are required 
to aggregate the returns, can they make a certificate willfully falsify- 
ing the whole result of the election without being guilty of forgery ? 
While I concede that this technical question is not, in the present 
state of the law, clear enough to justify any dogmatism about it, the 
conclusion is not unreasonable or presumptuous that the canvassing 
officers who did this thing, the Governor who participated in it, and 
all other persons who encouraged or aided them, are within the con- 
demnation which the law pronounces upon forgers. I ought, however, 
to add that I have not looked at the criminal code of Louisiana. I 
have taken it for granted that it contains nothing inconsistent with 
the general principle established in England by the statute of Eliza- 
beth, and adhered to in the other States of this Union. 

But this is not important now, and will never become so unless the 
guilty parties be prosecuted. The question at present is whether a 
vote known to be false and fraudulent shall be received as a true one. 
What weight or value shall be given as evidence to papers concocted 
with a predetermined intent to cheat ? If the evidence, which is laid 
before Congress, that Louisiana voted for Hayes, shall be shown to 
have its conception, its birth, and its nurture in mere iniquity, what 
honest man can safely give it entertainment ? A fraudulent paper 
proves nothing ; it is a mere nullity, as corrupt in morals and as void in 
law as any forgery can possibly be. 

The conclusiveness of the certificate made in legal form by the 
proper State authorities is admitted. But that always presupposes 
the honesty of the act. A judgment of the Supreme Court is conclu- 
sive, too ; but any justice of the peace who knows it to have been cor- 



POLITICAL ESSAYS AND LETTERS. 413 

niptly obtained may ])roperly cast it aside. The most solemn act of 
the Executive — a pardon, a patent, or a commission — loses all validity 
if it be tainted with fraud. Under proof of any dishonest practice 
any private deed and every private record becomes as worthless as a 
blank, no matter with what solemnity it may have been executed or 
how carefully attested. All writings are obliterated, and great seals 
of State crumble into dust the moment they are brought into contact 
with a covenous fact. This applies to election returns as well as to 
everything else. 

The principle which fences us against knavery in matters of minor 
importance will not fail us when an attempt is made to cheat us by 
wholesale out of the right to be governed by a President of our own 
choice. It lias been applied to election certificates in cases precisely 
analogous to this. Once upon a time the majority in the House of 
Eepreseutatives depended upon the election of members in New Jersey. 
The Democrats were chosen, but the Whig Governor of the State, 
tempted by the opportunity which he thought he had of making a 
bold stroke for his party, dishonestly certified the election of the mi- 
nority candidates and commissioned them under the broad seal. The 
commission, if it had any force at all, was conclusive evidence of their 
right to sit as members until they were unseated upon a regular peti- 
tion and contest. But it was fraudulent, and therefore void altogether. 
It was not allowed to prevail for a moment. In Pennsylvania a similar 
trick was tried in favor of candidates for the Legislature known to be 
defeated by means of a certificate from the returning officers, pro- 
nounced by the Governor, the Secretary of the Commonwealth, and 
all high authorities to be conclusive. But being known to be a sham and 
a falsehood, the right claimed under it was resisted to the uttermost. 
Nobody now believes that it was not rightly and legally treated. 

But it may be denied that the action of the Governor and the re- 
turning board is fraudulent. That is a matter of fact not yet in shape 
for full discussion. If the Hayes electors, the Governor, the returning 
board, and other parties to this transaction can prove that they added 
up the vote and certified the aggregate results according to the truth 
as it really was, or as they had reason to believe it, then the Democrats 
have no case. But if they knew what the result was, and yet willfully 
falsified it, that is a fraud per se. They not only did this, but they 
greatly aggravated the guilt of the act by founding it on pretenses 
known to be false in fact and insufficient in law. 

It is said that the returning board is not bound to make a mere 
count of tlie votes and ascertain what candidates have a majority, but 
may sit in judgment on the returns from every parish, and certify 
the majority not as it actually is, but as in their opinion it ought to 
be. To support this they quote section 3 of the Louisiana election 
law, which no one can read without seeing that it was passed by a cor- 



414 POLITICAL ESSAYS AND LETTERS. 

rupt Legislature to prevent the people of the State from turning out 
the party then occupying the State offices. 

A returning board certainly ought to have judicial or quasi-judi- 
cial powers to a certain extent, to correct the blunder of a superin- 
tendent, to inquire whether a return from any polling-place is proper- 
ly authenticated, to ascertain what votes have been cast for any candi- 
date by persons not qualified, and make the proper deduction. This 
is authority which may certainly be given to State canvassers. But it 
is not given to the Louisiana board by the section referred to. They 
assert that it does give them power to disfranchise all the inhabitants 
of any parish in which there has been "an act of violence, riot, tu- 
mult, intimidation, armed disturbance, bribery, or corrupt influence." 
Their jurisdiction, as they claim it, is that of the highest criminal 
court, and is to be exercised in ways totally prohibited to all courts. 
They may try the people of a whole parish at once, and condemn them 
all on ex parte statements, without a hearing or notice, for acts of vio- 
lence committed by a person unknown to them at any place within 
their borders, and at any time in the indefinite past. A conviction 
obtained in this way is immediately followed by a sentence of disfran- 
chisement, which I need not say is the most frightful penalty that can 
be inflicted on a people struggling to free themselves from the domi- 
nation of reckless knaves. Tliis terrible jurisdiction to doom and 
punish may seem to be mitigated by the pardoning power, for the 
board is authorized to condone the offense when they think it has not 
** materially changed the result of the election." But no clemency is 
ever extended to their political opponents. The "result of the elec- 
tion '' is always " materially affected " by an act of violence or fraud, no 
matter when, where, or by whom committed in a Democratic district, 
but the reverse is sure to be held where the majority is not Democratic, 

Will any man in the world say that a power like this may be held 
and wielded by a returning board consistently with the fundamental law 
of Louisiana, or any other free State ? No ; for reasons too numerous 
to mention. It usurps authority which belongs exclusively to the 
courts ; it imposes the severest punishment, without trial or evidence, 
upon large bodies of men who are known to be innocent of every of- 
fense ; in defiance of the State constitution, it refuses the votes of 
qualified citizens, and makes the right of suffrage a mere mockery. 
Moreover, it flatly violates that express provision of the Federal Con- 
stitution which declares that " no person shall be disfranchised except 
for rebellion or other crime," which, of course, means a crime of his 
own whereof he is legally convicted. 

Besides that, this law does not apply to the case of presidential 
electors. It is expressly confined to State, parish, and judicial offi- 
cers, to members of the Assembly, and members of Congress. There 
is another and a totally different provision for canvassing and count- 



POLITICAL ESSAYS AND LETTERS. 415 

ing the votes for presidential electors, which appears to be iu full 
force. 

On the whole case the law and the evidence, which is sure to 
come through the proj^er committee, will demonstrate this to be a 
monstrous, unmitigated, palpable fraiid upon Louisiana and upon the 
whole American people. It is not the vote of the State, nor the 
product of any State authority legally exercised, but the mere spawn 
of a criminal conspiracy. It is impossible to see how Congress, or 
either House of Congress, can, with its eyesojjcn, receive this thing and 
palm it off on the nation as a genuine vote, without becoming a par- 
taker in the crimes which gave it origin, unless the law teaches a false 
doctrine when it says that he who knowingly utters a false paper is as 
guilty as he who makes it. 

But it is possible that the judgment of the two Houses upon this 
subject may differ toto ccelo. They act, deliberate, and decide inde- 
pendently of each other. Though they sit in the same hall while the 
votes are counting, they are not fused into one body. Upon any 
question within the jurisdiction of both, the judgment of one is as 
potent as the other, and it is equally clear that each must decide for 
itself how, when, and in what manner the separate duties assigned to 
it shall be performed. 

Now, the Senate may think that this vote is not fraudulent, or it 
may believe that fraud is, and ought to be, as good and valid as truth, 
while the House adheres to the opposite notion, and, acting upon its 
convictions, refuses to sanctify the fraud by adopting it. AVhat then ? 
Does that bring the organic machinery of the Government to a dead- 
lock, so that it can not move without breaking to pieces ? Certainly 
a difference between the two Houses must be followed by that disas- 
trous consequence, if it be true that each has the same power over the 
whole subject and over every part of it. Let us see if this be the state 
of the law as the framers of the Constitution made it. 

The power to count the votes and decide upon their validity is not 
given in express words. But it comes by clear implication from the 
duty of electing a President and Vice-President in case no candidate 
has a majority of the electors. The subsequent and immediate duty 
of the House depends u])on the state of the electoral vote for Presi- 
dent, as the Senate's action must be governed by the vote for Vice- 
President. The duty to do an act upon a certain contingency cer- 
tainly implies the power to ascertain whether that contingency has 
arisen or not. If the Senate thinks it right to admit fraudulent votes, 
and can find enough of them to elect their candidate, they may in- 
stall him in the chair of their body, since there is no legal authority in 
the House of Representatives or elsewhere to stop them. If they, 
upon examination, believe that a true count of the legal vote gives no 
one a majority, and thereupon proceed to make an election of their 



416 POLITICAL ESSAYS AND LETTERS. 

own between the two highest, the House certainly can not interfere. 
The House is equally independent when engaged in the performance 
of the duty separately and specially assigned to it. If no candidate 
has a majority of all the electoral votes, the Eepresentatives of the 
people in the Lower House shall make a choice from the three high- 
est. How is this duty to be rightfully performed without ascertain- 
ing whether any candidate has a majority, and, if not, who are eligi- 
ble as the three highest ? And by whom shall the fact be ascertained 
if not by themselves ? If the House, upon what it believes to be a 
true count of the votes, shall determine that no one has a majority, 
can the Senate interfere and command the House not to elect ? Or 
can it dictate to the House the names of the three persons from whom 
the choice is to be made ? To ask these questions is to answer them. 
The Senate having nothing to do with the presidential election has no 
duty to perform about it — can pronounce no judgment upon it that 
binds anybody. For the same reason the House can not interfere 
with the business of electing a Vice-President, which the Constitution 
has confided to the Senate. Each is as far from the control of the 
other as both are from the control of the Executive. 

There is a joint rule of the two Houses, by which they have mutu- 
ally bound themselves, that neither House shall count a vote for Presi- 
dent or Vice-President if the other decides to throw it out. Whether 
this rule is in force or not makes no practical difference in the present 
case on the question between Tilden and Hayes. The refusal of the 
House to count the fraudulent votes, if it does not prevail under the 
rule, must be made equally effectual under the naked Constitution. 



FORENSIC. 



ABLEMAN vs. BOOTH.— THE UNITED STATES vs. 

BOOTH. 

SUPREME COURT OF THE UNITED STATES. 

May it please your Honors : 

These two cases may be regarded as one and the same case. They 
both arise out of the same transaction, and one of them takes it up 
just at the place where the other drops it. It is some little time since 
I have carefully looked at the record, but I think I can state the facts 
of the cases without danger of committing any material error. 

It appears that a negro slave absconded from his master in the 
State of Missouri, and came over into Wisconsin, -vtliere he was appre- 
hended under the act of 1850. While he was in the custody of the 
marshal, he was aided and assisted by Booth, the defendant in error, 
to escape. For that offense Booth was prosecuted under the seventh 
section of the act ; arrested, carried before a commissioner, and, refus- 
ing to give bail, was committed for trial. After he went into custody 
under the warrant of commitment, he made application to one of the 
judges of the Supreme Court of the State of Wisconsin for a writ of 
habeas corpus, which was allowed him. The judge, after hearing the 
cause at his chambers, delivered a very elaborate opinion, in which he 
proved, apparently to his own entire satisfaction, that the fugitive 
slave law was unconstitutional, and that there were certain fatal de- 
fects in the warrant of commitment. From these premises he drew 
the deduction that he had the right to discharge the prisoner, so that 
he could not be tried by the United States Court. 

To this proceeding a certiorari was taken by the District Attorney 
of the United States, and the case was removed into the Supreme 
Court of the State, in ianc. There it was heard again. The judge 
who had already heard the cause adhered to his previous opinion. 
One of his brethren agreed with him that the law was unconstitutional, 
but put his opinion upon grounds somewhat different. The other 
judge concurred in affirming the order of discharge for the supposed 



418 FORENSIC. 

defects in the form of the warrant. The prisoner was therefore finally 
discharged, so far as that proceeding went. 

Nevertheless, at the next term of the District Court of the United 
States, a true bill was found by the grand jury, and upon that indict- 
ment a bench warrant was issued by the judge, on which he was ap- 
prehended to await his trial at the next succeeding term. He made 
application again for anotlier liabeas corpus to the Supreme Court of 
Wisconsin. They refused to allow the writ, on the very sensible 
ground — sensible, I mean, when considered with reference to what the 
same court did before and afterward — that they had no authority over 
the matter, and that the District Court had all authority. He was 
tried ; his guilt was proved ; he was convicted ; a motion was made 
for a new trial, which was refused ; he moved in arrest of judgment, 
and that also was overruled ; he was sentenced — sentenced moderately 
— to a fine of two hundred dollars, and ten days' imprisonment in the 
common jail. 

Immediately after he went into the custody of the marshal in ex- 
ecution of this sentence, he made a third application to the Supreme 
Court of the State for another habeas corpus, which was allowed him, 
and they heard the cause again. But then it was heard ex parte. The 
District Attorney supposed that he had done his whole duty when he 
had followed the prisoner until he saw him convicted by a jury, and 
in custody under the sentence of a court having exclusive jurisdiction 
of the offense. But the case was argued at length by the counsel for 
the prisoner, and, after that, it was taken up by the judges and argued 
by them at still greater length on the same side. The same differences 
of opinion manifested themselves then, which had existed before, on 
the constitutional question. The third judge, who had previously dis- 
sented from the other two, dissented again, holding that the Fugitive 
Slave Law was constitutional enough. But it seems not to have entered 
the head of any judge on the bench that the question was already 
settled. That the District Court, the tribunal to which Congress had 
referred the whole case for decision, was entitled even to a voice in the 
matter, was a proposition which no one thought of unless to deride it. 

There was another subject upon which they were unanimous, and 
that was, that if they could find any defect in the pleadings — if the 
offense was not set forth in the indictment with the legal precision 
which the statute required, according to their construction of the stat- 
ute — then also they might reverse the judgment of the District Court, 
and enlarge the prisoner. Thereupon each judge drew as fine a sight 
as he possibly could upon the indictment, and each one saw, or thought 
he saw, some defect in it. Upon these grounds they discharged the con- 
vict, who goes unpunished at this hour. He has, besides, the implied 
assurance of the Supreme Court that if he pleases to commit the same 
offense again, they will use all their power to screen him from justice. 



FORENSIC. 419 

When these writs of error were taken, the judges refused to obey 
them, and directed their clerk not even to give us a copy. But we 
had copies before, and upon them the cases were docketed, as your 
honors remember. 

Before I proceed to consider what may be called the legal merits — 
or rather the demerits — of these cases, I desire to call the attention of 
the court (but only for a moment) to the manner in which they come 
here. I have not a doubt that the filing of a record attested as this 
is will give your honors complete and ample jurisdiction to revise the 
proceedings and to reverse or affirm the judgment as you may see fit. 
I am equally well satisfied that my predecessor's conduct was governed 
by good and wise reasons. Nor do I think that any other course ought 
to have been taken by this court itself ex mero motu. But what I do 
fear is, that this case, taken in connection with that of Worcester vs. 
The State of Georgia, may be regarded as authority for a principle 
which I am very sure neither of them was intended to cover. The 
inference may be that this court considers itself as being powerless to 
enforce obedience to a writ of error addressed to a State court. This, 
of course, is untrue, and might lead to serious trouble. It might 
happen — it is almost a wonder that it did not happen in this case — 
that nothing but a regular return will bring the record here. 

Most assuredly, if this court is authorized to issue a writ of error, 
as by the Constitution of the United States and the act of 1789 it is, 
to a State tribunal of the last resort, that authority must be coupled 
with the power to enforce obedience. It is no law unless it has a sanc- 
tion, as Mr. Justice McLean said in Eobinson's case. How, then, is 
the duty imposed by the command of this court upon the judges of a 
State court, to be enforced ? I answer, by proceedings against them 
as for a contempt. That is the mode of enforcing obedience to all 
process of every court, except in cases otherwise specially provided for 
by statute. Against whom is the proceeding to be directed ? Not 
against the clerk, who is merely the hand of the judges, but against 
the judges themselves, to whom the writ of error is directed, who can 
not shift the sin of disobeying it on their servant, nor atone for their 
offense by a punishment inflicted on him. 

In the practice of that State with whose code of procedure I am 
most familiar, it has often happened that rules have been made in the 
Supreme Court upon judges of the Common Pleas to show cause why 
attachments should not issue against them. I speak what I do know 
when I say that, in every case where a rule was taken, the proceeding 
would have ended in the conviction of the judges, if some good de- 
fense had not been made. In one of the recent English reports — the 
fourth volume of the ''Jurist" — where Baron Alderson was ruled to 
show cause why an attachment should not issue against him for a simi- 
lar offense, he made an explanation which showed that he was not in 



420 FORENSIC. 

contempt, and therefore the matter was dropped. But it was not 
dropped because the court that issued the writ of error did not think 
they had the power to imprison him if he had finally and willfully re- 
fused to perform his duty. The general rule is also laid down in the 
Institutes. In the very remarkable controversy that took place in 
New York between Lansing and Yates — or one of the branches of that 
case — the Court of Errors and Appeals took the same course with the 
judges of the Supreme Court. 

Judge Nelson'. — That is the acknowledged practice in New York. 

Attoejstey-General Black. — It is so in Pennsylvania; it is so 
everywhere. All authority is for it. There is no authority nor no 
practice against it. The reason of the thing and all the analogies of 
the law are in favor of it. 

For these reasons, I hope that your honors will cause it to be 

understood, as clearly and distinctly as possible, that these judges, in 

refusing to send up their record, violated a plain obligation imposed 

I upon them by the Constitution of the United States, which they were 

' sworn to support ; that in that refusal they were guilty of a contempt 

i of this court ; that such a contempt is a high crime against the ad- 

\j I ministration of justice ; and that these men owe their impunity, not 

to any weakness, or supposed weakness, of this tribunal, but to the 

\ magnanimity of the Government in forbearing to ask for punishment. 

Passing from that, let us look at the record itself. 

I desire to sjieak as respectfully as possible of "all who are placed 
over us." I know that it is the religious duty of every Christian man, 
and the political duty of every good citizen, not "to speak evil of 
dignities." But I would be withholding from this court what I most 
devoutly believe to be the truth, if I did not say that the whole of 
these proceedings in the State Court of Wisconsin are, from beginning 
to end, a mere tissue of legal absurdities. I say this "more in sorrow 
than in anger" ; for two of the judges, constituting a majority of the 
court, have discussed the case in terms of decency and moderation. 
Of the other judge I have nothing to say one way or the other. If 
you will take the trouble to read his voluminous opinions in these cases 
you will know as much about him as I do. 

The legal point that was decided in one of these cases is just this, 
stated as shortly as possible — of course, I make the statement in my 
own words : That where an offetider against the laivs of the United 
States is on his trial, the court which alone has power to try him shall 
not he permitted to determine ivhether the law that defines the offense 
is constitutional or not ; nor to give the construction of it ; nor to de- 
cide tuhether the offense is sufficiently set out upon its own record; 
iut after conviction and after judgment all these questions remain open 
to further inquiry, and may he readjudicated ly any State judge who 
is invested hy a State law luith the general authority to issue writs of 



FORENSIC. 421 

habeas corpus. That is the proposition decided in one of these cases. 
In the other, it is held : That a party charged with an offense against 
the laws of the Union, and in custody of the Federal officers awaiting 
his trial, may he tahen out hy habeas corpus and discharged without 
trial, by any State judge ivho has self complacency enough to think he 
understands the law and the Constitution better than the tribunal 
whom Congress and the framers of the Constitution have charged with , 
the duty of deciding upon them. If I were required to make one head- 
note for both tlie cases, it would be this : That the habeas corjms in 
the hands of a State judge may be used against the Federal tribunals 
as a Writ of Prohibition before judgment, and a Writ of Error after 
judgment. 

This claim is not based by the "Wisconsin court upon any appellate 
jurisdiction which they supposed themselves to have. They admit 
that no authority is given them by any law, either of the State or of 
the United States, to review the proceedings of a Federal court. They 
do not assert even a right to try the party themselves. They merely 
say that no Federal court can have jurisdiction in any case where it 
has committed or is likely to commit an error. Being without juris- 
diction, its proceedings are null and void. They have' a right to de- 
termine what is an error and what is not. It follows from these prem- 
ises that no Federal court which presumes to diifer from them, either 
on a profound question of constitutional law or on a sharp point of 
special pleading, can exercise the authority given to it by the Consti- 
tution and laws of the Union. Upon this principle it is manifest that 
the laws of the United States can never be executed except by the 
grace and favor of the State courts, and such grace is never to be given 
when they disagree in opinion. 

You have no jurisdiction when the State judges think you exer- 
cise it erroneously. No jurisdiction ! One blast upon that ram's horn 
and the whole structure of judicial authority built up by this Govern- 
ment comes tumbling about our ears like the walls of Jericho. 

The Constitution declares that the Federal courts shall try all of- 
fenses against the laws of the United States ; and Congress has given 
exclusive jurisdiction of Booth's offense to the District Court. No law, 
State or national, has authorized the Supreme Court of Wisconsin to 
intermeddle with the business in any one way or another. Yet the 
latter court asserts its own jurisdiction and denies that of the Federal 
tribunal. The logic by which the judges bring about this strange 
bouleversement of the law is curious to look at. The first thing they 
do is to assume that their opinion is conclusive — *' the end all and 
the be all " of the whole matter. Next they decide that the District 
Court is without authority, and its judgment a nullity. Thence they 
come back, as the surveyors would say, to the place of beginning, 
and conclude that inasmuch as the Federal court has no power they 



422 FORENSIC. 

themselves have all power. Their language to the Federal judge is 
substantially this : '' We admit that the validity of our judgment de- 
pends on yours being void, but yours is void because ours is valid ; and 
when we pronounced our valid judgment, we said yours was void." 
Logicians have told us that reasoning in a circle proves nothing. But 
here it has been used as a means of proving what could not possibly 
be proved in any other way. 

If this power were conceded to the State courts, it would never 
be grossly abused by any judge who acknowledges the principle of 
stare decisis. But in this case all authority was trampled under foot. 
That public wisdom which, in every country, is made the rule of civil 
conduct for the very purpose of supplying the deficiencies of individ- 
ual judgment, is treated with contempt, and in its place is substi- 
tuted a mere private notion, which each judge carries about in his 
own breast. No matter whether he got it from a stump-speech or a 
partisan newspaper, or whether it be an original crotchet of his own 
brain, if it be his own, either by adoption or birth, that fact alone 
immediately consecrates it and makes it the supreme law of the land, 
so far as he has anything to do with the administration of it. The 
evil effect of departing from the settled law, and putting up private 
opinion as a standard of decision, was never so palpable as it is in this 
case. Here was a rule of constitutional interpretation, acted on by 
the Father of his Country, and by all his successors ; approved by 
the second Congress that assembled under the Constitution and by 
every succeeding Congress ; affirmed directly or indirectly by every 
judge that ever sat on this bench, and by all the Federal judges of 
the country ; approved, moreover, by every State court (except that 
of Wisconsin) in which it was ever questioned ; and all the people 
have said '*so be it." This rule, so sanctioned, so approved, so sus- 
tained by every branch of the Government, and by all classes of peo- 
ple — this is the rule, which the court below repudiated. Why, it 
will stand the test of orthodoxy which St. Augustine applied to the 
creed of the church — quod semper, quod uhique, quod ab omnibus 
credihim est. Whosoever opposes his sole opinion to such an article 
in the judicial faith of the country, must needs be a promoter of 
heresy, disorder, and schism to the whole extent that his power can 
go. We are in the habit of speaking about legal authorities under 
the figure of a stream. When they are numerous, decisive, and strong, 
we call it a current. There is no current of authority here, but a 
torrent, rolling forward impetuously as the waters of the Niagara 
River, and pressed from behind by all the waters of the lake. And 
here stand one or two men on the shore wlio try to roll it back by 
throwing their handful of sand in it. But the mighty torrent still 
thunders onward. 

Ldbitur et lahetur in omnc volubilis avum. 



FORENSIC. 423 

Still, perhaps everywhere, except in Wisconsin, we might manage 
to get on in some sort of fashion if this power were confined to the 
Supreme and Superior Courts — to those who occupy the highest posts 
in the State Judiciary. But it is claimed as a mere incident to the 
law of habeas corpus, and, therefore, any judge who can issue a habeas 
corpus can do everything that was done by the Supreme Court of Wis- 
consin. In most of the Western States the power of issuing such 
writs is given to the probate Judges, whose most important business 
it is to settle administration accounts, and who may, or may not, be 
fit even for that. In other States this power is wielded by the associate 
Judges of the Common Pleas, whose general duty it is to sit beside 
the president during term-time, and do nothing at all. They are 
almost universally respectable men in their way, but nobody suj^poses 
that any great amount of legal talent is wasted upon that office. 
Your honors sec very well, that, according to the Wisconsin doctrine, 
the highest, and the most elevated, and the most learned of the Feder- 
al Judges is completely subordinated to the lowest, the most preju- 
diced, and the least educated of all the State Judges, and that, too, on 
questions of national law. A Judge appointed by the proper organs 
of the national Government, responsible to the public opinion of the 
whole nation, triable before the representatives of all the States for 
any offense he may commit in office — he is placed in total subjection 
to some other Judge, who owes no responsibility to anything but the 
popular sentiment of a single county. If this were acted on but a 
little while, our Judicial system would acquire a mode of progression 
like nothing I ever heard of, except Cotton Mather's snake — a very 
curious specimen of natural history, which, he said, he discovered in 
Massachusetts, and which he described as "a, serpent which goeth 
one while with its head foremost, and one while with its tail fore- 
most. " 

Suppose one of your honors to be sitting in the Circuit Court and 
trying a party accused of some grave crime against the laws of the 
United States — piracy, murder upon the high seas, the offense of 
importing captured Africans into the United States or exporting 
stolen slaves into Canada — it matters not what you suppose it to be. 
In the course of the trial the constitutional validity of a statute is 
denied, its construction is doubted, or the correctness of the pleading 
under it is impugned. You are not to decide these questions. It is 
not worth while for the counsel to argue the case to you ; but if there 
should hapjoen to be, among the spectators in a corner of the court- 
house, a probate Judge of the county, let them address him ; for he 
is the Judge of last resort. You need not charge the Jury. The ver- 
dict, if it be a verdict of guilty, will not stand a moment before the 
omnipotence of a habeas corpus. Charge the Judge in the corner ; for 
if you do not convince him, he will mount his habeas corpus and charge 



lA 



424 FORENSIC. 

down upon you. And he is an adversary that you can not possibly 
cope with. One blow from him will knock your proceedings all to 
pieces. One word of his will paralyze your power. If he but breathes 
upon your Judgment he melts it into nothing. Even if you convince 
him, perhaps you have not done the tithe of the work you have yet to 
do. There may be a score of other judges in the neighborhood having 
just as much power over your judgment as he has, and if you do not 
get all of them you may as well have none. How are you to get them ? 
Will you call them together and make a general speech ? or will 
you canvass them separately ? Their "most sweet voices" you must 
have in your favor, or else the execution of the Federal laws will 
become impossible. 

The very reverse of this is as necessary to the administration of 
justice in the State as in the Federal courts. Imagine two State courts 
to be sitting side by side, each invested with its own exclusive juris- 
diction over different classes of subjects, but all the judges of both 
having power to issue writs of habeas corpus. Shall a single judge of 
one discharge the prisoners and set aside the judgments of the other ? 
They may on the principles laid down in this case. Nay, it is but 
carrying the doctrine to its consequences to say that, where a criminal 
court consists of three, four, or five judges, one of them, who dissents 
from the rest on a question of law, may wait till the term is over, 
bring the convict out from the penitentiary, and discharge him, on 
habeas corpus, despite the majority. 

This notion that a judge who hears a case on habeas corpus is not 
restricted to his own proper jurisdiction, is a growth of the last ten 
years. Within that time great men at the bar have seemed to be- 
lieve it sound ; and now and then a judge has been found who eagerly 
grasped at the opportunity of doing by habeas corpus what the law 
forbade him to do in any other way. Six or seven years ago, a man 
who was arrested in Ohio, for embezzling public money in California, 
was taken out of the hands of the Federal authorities by a State judge, 
and to this day he runs at large un whipped of justice. It was a griev- 
ous outrage on the authority of this Government, and it ought to have 
been condignly punished. Some time afterward a marshal in Ohio, 
who had a prisoner in his custody under process of the Circuit Court, 
was served with a habeas corpus commanding him to bring that same 
prisoner before a State judge. The marshal could not obey the habeas 
corpus without disobeying the other process, which he knew to be le- 
gally binding. The next place he found himself was in the custody 
of a sheriff, and he was on the point of being sent to jail for doing his 
duty, when Mr. Justice McLean threw the shield of his protection 
over him and pronounced all the proceedings of the State judge to be 
entirely void. In 1857 it seemed as if a civil war was about to break 
forth in Oliio, by reason of an effort which the State officers made to 



FORENSIC, 425 

thrust themselves between the Federal authorities and certain persons 
who had committed crimes against the United States. The history of 
this transaction is known to the court. It is also known how the Ohio 
Legislature has virtually abolished the old writ of habeas corpus — the 
writ made sacred and perpetual by the solemn words of the Constitu- 
tion — and supplied another thing, which serves as a mere excuse to res- 
cue and re-capture prisoners who are detained in lawful custody. But 
no Supreme Court — no court of any kind, whose opinions are thought 
by itself to be worth reporting — has taken the ground on which the 
Wisconsin court planted itself in this case. 

All laws made for the general welfare of a country so large as 
ours, and for the protection of rights so diversified, must necessarily 
encounter some local unpopularity. It was always so from the origin 
of the Government. But in the earlier and better days of the Eepub- 
lic, this mode of opposing them was not thought of. In 1796 the ex- 
cise duty on distilled spirits was believed in "Western Pennsylvania 
to be not only oppressive but unconstitutional. But the men of that 
day threw themselves back on the moral right of revolution, and op- 
posed the obnoxious law with arms in their hands. They never dreamed 
of carrying on the ''Whisky War" by firing off writs of habeas Q. 
corpus at the Federal authorities. Two years afterward there was a ' 
strongly-marked division of sentiment on the constitutional validity _ 
of the Sedition Law. There was but one man in the country who 
thought of asking relief at the hands of a State judge. The precedent 
was not thought a fit one to be followed, and Mr. Sergeant's research 
alone has saved it from total oblivion. Callender and Lyon and 
Cooper served out their time, and paid their fines, or waited the advent 
of a new Administration. At a later period, when nullification arose . , ^ 
in South Carolina, the people of that State assembled in convention, 
and abrogated the tariff act by a solemn Ordinance. This, according 
to their theory, wiped it from the statute-book as completely as if it 
had been repealed by Congress. Then they authorized resistance to 
it, and Judges might oppose it by habeas corpus and homine replegiando 
on the same principle that a private citizen could oppose it with pike 
and gun. We all remember the great debate in the Senate on this 
subject. Mr. Webster won his victory, so far as it was a triumph of 
logic and of law, by pressing this very point upon his adversary. 
"How," said he, "will you release yourselves from the grasp of the 
Federal judiciary ? " But the victory would have been on the other 
side, if General Hayne could have answered that the State judges had 
a right to take every case into their own keeping by means of the 
habeas corpus. He could not say so ; he was too wise a man to believe 
it, and too honest to say what he did not know to be true. President 
Jackson, in his proclamation, used the same unanswerable argument. 
The truth is, that the exclusive authority of the Federal judges to 



426 FORENSIC. 

decide all cases arising under the Federal laws was the lion in the 
path of nullification. It saved the country from dismemberment 
then, and no one knows the day nor the hour when it may be neces- 
sary to invoke it again for the same purpose. When it ceases to be 
maintained, the Union of the States will become a rope of sand. 

The highest tribunals of the States (that of Wisconsin always ex- 
cepted) have uniformly refused to adopt this wild notion of their 
power over the Federal laws. It was distinctly repudiated by the 
Supreme Court of Massachusetts, in Simms's case ; by that of New 
York, in Prime's case ; and by that of Pennsylvania, in Williamson's 
case. It had been exploded long before by Judge Cheves, of South 
Carolina, in an opinion of singular brevity, clearness, and force. 

But there is one authority on this subject, to which I beg your 
special attention. What I refer to is an act of the Wisconsin Legis- 
lature, in which the judges of that State are plainly, expressly, and 
unequivocally forbidden to do the very things which were done in both 
these cases. The statute declares that no habeas corpus shall be al- 
lowed to any person who is detained in custody under process issued 
by a Federal court or judge having exclusive jurisdiction of the offense 
therein charged, nor shall such writ be allowed to one who is detained 
under the final sentence or judgment of any court of competent juris- 
diction. 

Mr. Justice Grier. — Was that statute in force at the time of this 
decision ? Perhaps it was enacted since. 

Attorxey-General Black. — It was in full force at the time. 
The decision of the court was in flat opposition to it. The judges saw 
it, met it full in the face, quoted it, and did not pretend to misun- 
derstand it. They knew it to be as perfect a prohibition as the Leg- 
islature could make of tlieir whole proceeding. Will your honors 
believe me, when I tell you what reason they gave for disregarding it ? 
They said it was unconstitutional ! They not only asserted their 
own authority to resist the execution of Federal laws, and set aside 
the judgment of a Federal court, but they denied the power of their 
own Legislature to confine them within the sphere of their proper 
duties. 

I suppose I have said enough to show that, whatever the law upon 
the subject may be, the Supreme Court of Wisconsin is decidedly not 
the place to look for a sound exposition of it. I submit that the 
propositions of the brief are true, and sustained by the authorities 
cited. I shall refer to them severally. 

I. The judges were guilty of a criminal contempt in refusing to 
send tip their record. On this I have nothing fiirther to say beyond 
a reference to the books. (2 Coke Inst., 435-27; 4 Jurist, 190 ; Act 
1789, sec. 17 ; Act 2, March, 1831.) 



FORENSIC. 427 

II. The act of 1850 for the extradition of fugitives from labor is 
constitutional, hinding, and valid. This has been denied on three 
grounds : 1. Congress had no power to legislate on the subject. 2. 
There is no provision for the trial of a fugitive by jury. 3. Commis- 
sioners are part of the machinery to be employed in executing it. The 
two first of these points have been so often decided here and elsewhere 
that this court, on several recent occasions, have admonished counsel 
that they were no longer regarded as open to argument. The third is 
equally well settled ; but at first blush it has something about it a lit- 
tle more plausible. The argument on the wrong side is this : The 
judicial power of the United States is given by the Constitution to the 
Supreme and other courts, of which the judges shall be appointed in a 
certain way, and hold their commissions during good behavior. Com- 
missioners exercise judicial functions, and are therefore judges. But 
they are not appointed in the way prescribed by the Constitution for 
the appointment of judges, nor do they hold their offices during good 
behavior. The vice of this argument consists in the assumption that 
commissioners are judges merely because they sometimes exercise 
powers which the judges themselves might exercise without them. A 
judge may commit to prison, take a recognizance of bail, administer 
an oath, investigate the facts of a cause, and deliver into the proper 
custody a fugitive from justice or labor. But it does not follow from 
this that he may not delegate the power to a clerk, examiner, master 
in chancery, auditor, commissioner, or other assessor. These are but 
servants of the court, not judges. Their decisions can determine no 
ultimate right, and are never conclusive either upon the court which 
appoints them or any other. 

The same rule of constitutional interpretation which forbids the 
courts to appoint officers necessary for them, would require Congress 
to exercise directly all legislative power. Then Congress must sit 
every day as a town council for Washington and Georgetown. The 
executive power being given to the President, he must collect all the 
revenues and pay them out in his proper person ; command the army 
and navy without the aid of subordinates ; defend the country by his 
individual prowess ; and put down every insurrection with his own 
right hand. 

But this reductio ad ahsurdum was hardly needed, for the cases I 
refer to are more than enough to put every constitutional objection to 
the act of 1850 at rest forever. (5 How., 230 ; 14 How., 13 ; 16 Barb., 
268 ; 7 Cush., 285 ; 5 McL., 469 ; 2 Pick., 11 ; 5 S. & E., 62 ; 12 
Wend., 311 ; 4 W. C. C. R., 327 ; 16 Peters, 539 ; 1 Bald., 671 ; 3 
Liv. Law Mag., 386 ; 18 How., 972.) 

III. But the judgment of the District Court, even if it had been er- 
roneous, was absolutely conclusive. Being a court not only of conTpe-- 

28 



428 FORENSIC. 

tent but of exclusive jurisdiction, no question of law or fact which was 
or might have been raised on the trial can afterward be examined 
either directly or collaterally between the same parties in another 
court. Here was an offender against the United States who enter- 
tained some new and curious views of the statute which defined his 
crime. He says the Constitution protects him from the operation of 
such a law ; by his construction of it he is not within its meaning ; 
and (what is worse than all) there is a flaw in the indictment. On 
these acute propositions he bases his claim to impunity, and his proper 
judge, whoever that may be, must determine whether his defense is 
false or true. Who is his proper judge ? The Constitution and laws 
of the United States declare the sole authority over the subject-mat- 
ter to be in the District Court, and that court pronounces his defense 
unsound in law. Thereupon he appeals by habeas corpus to another 
court, which all law, both State and national, has forbidden to take 
cognizance of the matter ; and this latter court, in defiance of the pro- 
hibition, not only re-examines the cause, but enlarges the convict and 
sends him abroad to commit the same offense again. 

The rule of law which made the judgment of the District Court 
conclusive in this case uj)on all the points which were here re-exam- 
ined in the State court, is so clearly defined, so universally acknowl- 
edged, so well settled, so necessary, and so wise, that if I had not seen 
this record, I should have been willing to affirm that no judge in 
America had ever denied or ever would deny it. It is laid down in 
all the horn-books of the law ; and I make some citations merely to 
show how strangely the authorities have been overlooked : (Dutchess 
of Kingston's case, St. Trials, 3 Smith's Leading Cases — note ; 5 0. 
B. Kep., 418 ; 14 Q. B. "R., 566 ; 6 Q. B. R, 666 ; 57 Eng. C. L. E. 
216; Cro. Car., 168; 1 Barb., 240; 26 Penn. St. Rep., 9; Stat, of 
Wis., Hab. Corp.; 1 Curtis Com., 155-'56-'57 ; Serg. Con. Law, 277; 
1 Kent, 319 and 419 ; 2 Story on Const., sec. 1756-'57 ; "Federalist," 
Nos. 30 and 81 ; Bhodes's case cited, Searg't, 284 ; 2 Wal., Jr., 536.) 

IV. Wlien a party accused or convicted of an offense against the 
United States is in the custody of the proper Federal officers, all pro- 
cess issued hy State judges to tahe him out of such custody is void, and 
the Federal officers may lawfully disregard it. Surely, when a judge 
or other officer of the United States is engaged in a duty confided to 
him by the Constitution and laws, another judge who is wholly desti- 
tute of jurisdiction can not thrust himself into the business. No 
country in the civilized world permits the administration of justice to 
be baffled and obstructed in that way. All process intended for that 
purpose, or calculated to have that effect, must necessarily be void. 
When a Federal officer is commanded by his own court to do one thing, 
and a State judge commands him to do another, he can not obey both. 



FORENSIC. 429 

It admits of no doubt that in such a case he is bound to execute the 
process which is legal, until he is preyented by physical force. There 
may be cases in which it would be prudent to yield the right rather 
than provoke a collision and excite the passions which such a collision 
would kindle. But it is not the point of prudence which you are 
called on to decide ; it is the question of law. "What is the legal right 
and duty of an officer so situated ? Your answer, I confidently trust, 
will be that he is bound to execute the legal writ, if it be possible ; 
that he must not voluntarily abandon his duty ; that the mere service 
of a bogus writ uj)on him is no excuse for surrendering a prisoner 
whom he is required to keep safely. If the prisoner be forcibly taken 
out of his hands, that is another thing. Tliat is a rescue ; and all 
concerned in it (including the judge who ordered it) may be dealt with 
accordingly. 

I claim nothing for the Federal courts which is not habitually con- 
ceded to the State courts. Both are equally independent in their re- 
spective spheres. Every judicial officer, acting within his jurisdiction, 
is an organ of the law, and the highest can not irregularly interfere 
with the lowest. A justice of the peace is entitled to as much respect 
as the Chief-Justice of the United States. Of course, I do not mean 
that involuntary homage which we all pay to the highest intellect com- 
bined with the purest integrity, but the legal obedience which is due 
to every judge who confines himself to the duty assigned him by the 
law. When a valid and binding command is issued by a court of 
competent jurisdiction to its own officer, a conflicting order issued by 
another court which has no jurisdiction at all must be void. This is 
true of courts established and maintained by the same government. 
It is, if possible, more emphatically true of tribunals differently ap- 
pointed, administering a different code, and responsible to a different 
government. (1 Mod., 119; 3 Pet., 202; 2 Hale Cr. PL, 144; 10 
Petersdorf Abr., 287; 2 Inst., 615; 57 Eng. C. L. R., 418; 2 Ld. 
Eaym., 1110 ; 5 Binn., 514 ; Searg. Con. Law, 284 ; 10 Rep., 76 ; 15 
Johns., 152 ; 9 Texas, 319 ; 6 Post., 239 ; 5 Barb., 276.) 

V. ^¥lle,n an officer is doing Ids duty in obedience to the legal pro- 
cess of the court to lohich he belongs, and an attempt is made hy an- 
other court to punish him for so doing, he is entitled to such summary 
measures as ynay be necessary for his protection. This is true at com- 
mon law and by universal custom. Suitors, jurors, witnesses, and 
officers whose service or attendance is necessary to the administration 
of justice in one court, must be free, while so engaged, from the pro- 
cess of other courts. If a Federal officer can not serve a writ or exe- 
cute a sentence without being arrested by a State court for doing so, 
the judicial authority of this Government will come to an end very 
soon. 



430 FORENSIC. 

But I need not argue this on original princii^les. The act of 1833 
distinctly provides for the immediate and summary discharge of any 
Federal officer so arrested, whether on civil or criminal process. In 
Eobinson's case, Mr. Justice McLean discharged his marshal with a 
stern rebuke to those who had detained him from performing his duty. 
In Jenkins's case, Mr. Justice Grier decided that the capias on which 
the deputy marshal had been arrested for the offense of serving pro- 
cess of the Circuit Court, was wholly void. 

Mr. Justice Gkiee. — The officer was arrested in that case on a 
criminal proceeding. There was an indictment found. 

Attornet-Geneeal Black. — The case, then, is stronger than I 
supposed. In addition, I will give you a reference to the act of March 
3, 1833 ; Jenkins's case, 2 Wall., Jr., 521 ; Ex Part. Eobinson, 3 Liv. 
Law Mag., 38G. 

When these proceedings shall receive the solemn condemnation of 
this court, the proper m.eans will be adopted to vindicate the law by 
rearresting the convict who was enlarged by them. 



FOSSATT vs. THE UNITED STATES (RANCHO DE LOS 
CAPITANCILLOS). 

SUPEKME COCET OF THE UNITED STATES. 

May it please your Honors : 

Theee is nothing really in this case which gives me the slightest 
embarrassment ; but certain occurrences outside of it have caused me 
some uneasiness. I know very well that the best way to deal with 
such matters is to say as little about them as possible, and therefore 
I shall not complain — at least not now. 

Before the cause was opened, the counsel of the claimant, of Ber- 
reyesa, of Castillero, and of Foster, all came to the conclusion that 
the United States, having filed no exceptions in the court below, and 
taken no appeal from the decree, were not entitled to be heard here ; 
certainly not for the purpose which they avowed of reversing the de- 
cree. This opinion was of course strengthened Avhen the Attorney- 
General, in rQply to a question from the Bench, said that he did not 
know whether he was appellant or appellee. When a gentleman of his 
acuteness, long experience, and great legal attainments, declares that 
he is ignorant which side of a cause he is on, the inference becomes 
irresistible that he is not on any side at all. We regarded it as a duty, 
which we owed not less to the court than to ourselves and our clients, 
to make this state of things known, so that the argument could pro- 
ceed regularly and properly as in other cases, and the real contest be- 
tween the real parties be discussed by those who truly represented them. 



FORENSIC. 431 

But the court decided to hear the two gentlemen who professed to 
represent the United States, and they obtained the floor. They have 
nsed the privilege, and one of them, to my thinking, has abused it. 
He has declared this claim to be a scheme, a trick, a fraud upon the 
just rights of the United States ; a mere evasion of the law. The 
Attorney-General, by virtue of his oflice, stands at the head of the 
American Bar ; and the present occupant of that place, by his high 
character as a gentleman and a lawyer, deserves to stand there. What 
is said by him, or by his assistant with his apparent sanction, may 
fairly be taken as the words of truth and soberness. When a party 
is thus denounced from such a quarter, no judge who hears it can be 
blamed for feeliiig toward him a strong sentiment of dislike and hatred. 
You would almost necessarily suppose that there must be at least some 
little truth in it ; some slight foundation for it. But I take leave to 
declare, that there is nothing in this record or out of it which, in the 
remotest manner, excuses such a charge. In the whole course of this 
struggle which has now lasted for more than twelve years, I have never 
before heard the honesty of the claim doubted, or the integrity of its 
holders impugned. Their worst enemies have always admitted that 
they pressed their claim because they believed it to be sound and right. 
They had everything to inspire them with faith in it. Here was a 
grant which all admitted to be genuine ; for land within boundaries 
plainly and clearly described. They saw survey after survey made 
according to the claim of the grantee ; witness after witness swearing 
that the survey was right ; decree after decree pronounced by all the 
judicial tribunals having cognizance of the subject ; and finally they 
saw this very Attorney-General placing his solemn admission on the 
record, that the United States had no objection to it. Why should 
they not have faith in such a title, so proved and so admitted ? They 
had faith and they showed it by their works ; for they took the title 
at a larger price (more millions of dollars paid down in solid gold) than 
was ever before given for a similar quantity of unimproved land. The 
Attorney-General can find no justification for the charge of his as- 
sistant — no excuse whatever — not even the low example of a venal 
pamphleteer, a scurrilous newspaper, or the meanest retailer of false 
and petty scandals. 

We are here asking for legal justice ; and that we expect to get, 
neither more nor less, for we are in a court where the scales are held 
with an even hand. We are not begging favors, but demanding a 
right. If we do not show our right, let our claim be rejected. 

In the supplemental brief filed by us are nine several propositions 
of law, to three of which I now call the special attention of the court. 
They are these : 

1. That the United States are estopped to deny the correctness of 
the survey by the decree of 1858. 



432 FORENSIC. 

2. That the United States, having made no objections to the sur- 
vey when it was brought into the District Court under the act of 
1860, have no right to make objections here. 

3. That the United States, having taken no appeal from the decree 
now under revision, have no right to be here, for the purj^ose of re- 
versing, changing, or in any manner modifying it. 

If these propositions be true, it folloAVS irresistibly that the United 
States are here attempting to reverse the decree, without authority or 
right. Are they not true ? Who can deny them ? Who has denied 
them ? Vital as they are to the case, clearly as they define the posi- 
tion of the Government to the whole subject, they are passed over by 
both the Attorney-General and his assistant in dead silence. You 
heard no logic from the former, no declamation from the latter, on 
either of the points. They know them to be incontestable and true. 
If they are true, then the United States can not come into this cause, 
as they have come, without walking over the slain body of the law. 

But these gentlemen have two points of their own ; one of them is 
stated by the Attorney-General, and the other by his assistant, and 
they are in direct conflict with one another. Mr. Wills thinks that 
all the proceedings in 'the court below are coram no7i judice, being 
unauthorized by the act of 1860, and should consequently be set aside. 
That would leave us with the decree of 1858, and a survey under it, 
just where we want it. Of course, nothing could suit our interests 
better. But fidelity to my own convictions makes it necessary for me 
to declare that I do not believe the law to be so. Mr. Bates, on the 
other hand, considers the proceeding in the District Court, under the 
act of 1860, as being sufficiently authorized, but expresses his doicM 
whether an appeal lies to this court. If he can make that doubt pre- 
vail, then this decree, from which we have appealed, is to stand, and 
the disputed property goes to Berreyesa. Upon his hypothesis, one 
private party gets the mine ; upon that of his assistant, the other is 
successful ; but in neither case can the United States be the gainer. 

But Mr. Bates is wholly wrong. When a doubt exists about the 
right of a citizen to appeal, that doubt is always to be resolved in 
favor of the right. The right of appeal to the highest judicial tribu- 
nal of the country is a sacred right, like that of trial by jury in a 
common law case, which is never denied upon doubtful construction. 
Here it is not even doubtful. The law expressly declares that no appeal 
shall be taken after six months. Does not that imply that an appeal 
taken before the expiration of six months is valid and good ? The 
constant, universal, and unhesitating construction given to the law 
by the District Court, by all the profession in California, by all the 
counselors practicing in this court, and by this court itself, is suffi- 
cient certainly to overbalance a mere doubt thrown by the Attorney- 
General into the other side of the scale. When he comes to consider 



FORENSIC. 433 

how he himself, the chief law-officer of the Government, and the de- 
partment over which he presides, have treated this law, I think that 
even his doubt will vanish, lie has taken appeals, perhaps a hun- 
dred, from cases precisely like this. Thousands of men interested in 
those cases have been compelled to follow them here as aj^pellees. 
Many of them, to my certain knowledge, have besought the Attor- 
ney-General almost on bended knees, to relieve them from the delay, 
the expense, and the harassing vexation to which his appeals were 
exposing them ; and he held them tight under this same law which 
he now says gave him no right to appeal. He has brought parties 
into this court under this law, and has prosecuted and pressed his 
appeals here, and, for aught I know, has procured the reversal of 
many. That he, of all men, should now deny the right of appeal, 
is a most ungracious thing. It is still worse that he should deny it 
in this particular case, where he has no interest, and where the effect 
of his denial, if sustained by the court, would be merely to establish 
a division-line between the private proprietors, which line he him- 
self, in his brief and his speech, denounces as wrong and unjust. 

I suppose it is expected of me that I sliould reply to the argu- 
ments made by the United States, as well as by the other parties. 
Perhaps it is my duty to my clients and to the court, not simply to 
take my stand upon the decrees already passed, but to go further, and 
show that those decrees are right. Though I did not anticipate this 
duty to be cast upon me, I am ready and willing to meet it. 

If the case were now before the court just as it stood before the 
Land Commission, if no admission had ever been made by either 
party, and there had been no adjudication by any court ; if it were 
open in all respects to be considered upon its original merits — then 
only one question of law could be raised in it ; and that one question 
is whether the judicial authorities of the country, in ascertaining the 
location and boundaries of private land, are to be governed by the 
calls of the grant, or whether the lines as described in the title-papers, 
are to be altogether set at naught and disregarded. That, I say, is the 
one question of law ; and it is really no question at all. I think, too, 
we all are agreed on that. Certainly the claimant does not ask of this 
court one foot of land that he does not suppose to be covered by his 
title. The representatives of Berreyesa make their claim upon the 
same principle exactly ; and I am glad to know that Mr. Bates is of 
the same opinion. All parties here agree that by the calls of the grant 
we must stand or fall ; and certainly it is the law of the land. To 
change a man's boundary, is to take away a portion of his property 
and give it to some one else who is not the owner of it, or take it 
from a private citizen and hand it to the public without just compen- 
sation. If you can do this with a part of a man's property, you may 
take the whole upon the same principle. Then all security to every 



4:34 FORENSIC. 

man's rights is gone, and everything is reduced to what Bob Roy 
called — 

" The good old rule, 
The simple plan, 
I That he shall take who has the power, 

And he shall keep who can." 

But that is certainly a sentiment which sounds better in the 
mouth of a Scotch robber than it would in the opinion of an Ameri- 
can judge. 

Then, by the admission of all parties (including the United States, 
who are not parties), we must follow the calls of the grant. It is 
our right to have the lines of our land established as the title-papers 
describe them to be. 

Mr. Bates.— Clearly. I agree to that. 

Mr. Black. — Now, we have a grant in which the lines are described. 
It is a grant of certain lands bounded by certain natural objects. I 
have not heard that denied. The boundaries that are described in 
the grant are capable of being ascertained and run upon the ground. 
That is not only true as matter of fact, but it is undeniable as matter 
of law. If the boundaries, as described in the grant itself, are so ob- 
scure that they can not be found anywhere on the surface of the earth, 
then we have no grant at all, no title of any kind ; because the grant 
in that case would be void for uncertainty. If it had been true, it 
would have been an insuperable objection to the validity of tbe title, 
and our claim never could have been confirmed. But the United 
States have many times admitted, and it has often been adjudicated, 
that this grant was a good and valid grant. That admission includes 
the admission that we have a grant of land by certain bounda- 
ries. Besides all that, when the case was in this court the first 
time, your honors, by the mouth of Judge Campbell, unanimously 
declared that the land granted to Justo Larios had boundaries on 
three sides, which were well defined by objects upon the ground, 
and that the fourth line was capable of being ascertained as fully as 
either of the other three by the simple process of a survey. 

Then we have a tract of land for which we have a good title, 
bounded by lines which may be located upon the ground. It remains 
only that we ascertain where those boundaries are. This can not be 
a difficult task. It is but looking at the calls of the grant, and then 
looking at the topography of the ground upon which the grant is to 
be placed ; apply the one to the other, and the thing is done. Any- 
body that can read may see the calls of the grant. There can be no 
trouble about that. But how the objects called for stand upon the 
ground is to be ascertained by an examination of the evidence which 
is scattered through a record of five hundred and fifty pages. That 
may require some attention and study, but, being carefully examined, 



FORENSIC. 435 

you will reach a perfectly clear conclusion, for the evidence is not in 
the least contradictory. Indeed, 'this is a subject upon which you 
would not expect the witnesses to be in conflict with one another. To 
swear away the hills and the mountains and the streams is a task that 
perjury would scarcely undertake, and certainly would not accom- 
plish ; for if one individual should make a misrepresentation of such 
a fact, he would be put to open and manifest shame by the j^roduction 
of twenty others, who would contradict him by proving the truth. 
Every fact, upon which we rely as showing where our lines are, is 
established so conclusively that every judge can safely rest his con- 
science upon it. 

Within the limits of an argument, you will not expect me to take 
up all the testimony in detail. I can but state to you what the gen- 
eral result is as candidly and as fairly as possible ; knowing very well 
that if I overstate or understate anything, it will be so much against 
me and nothing in my favor ; for you will verify what I say, or falsify 
it, as the case may be, by your own examination of the record. 

This land lies about fifteen miles south from the southern end of 
the Bay of San Francisco. It is very considerably higher than the 
waters of the bay. The whole country, from the foot of the Sierra 
Azul down to the bay, is an irregular mountain slope. In going from 
the bay to the land in controversy, if you follow the principal water- 
courses, you rise gradually at the rate of about seventy-five or one 
hundred feet to the mile ; but if you want to go directly over the 
country, the way the crow flies, you must cross a succession of hills 
and hollows ; each hill that you come to being a little higher than the 
one you left behind, and each hollow being also more elevated than 
the one you have just passed ; and through each of those hollows there 
runs a stream. Thus you go on, until you come to the top of \\\q, 
Pueblo Hills, where you stand about one thousand feet above the level 
of the bay and overlook the land in controversy. 

Continuing your course southward, you go down a rather rapid 
descent for four or five hundred feet, and you find yourself on the 
banks of the Alamitos Creek. Crossing that creek, you immediately 
begin to ascend again, not rapidly, but quite gently, for half or three 
quarters of a mile, when the acclivity becomes considerable and in- 
creases until you get to the top of what are called the Lomas Bajos — 
the low hills — the mining ridge — the cudiilla de la mifia. That is a 
range of hills extending eastward and westward for five and a quarter 
miles, and having an average height of from twelve to fourteen hun- 
dred feet above the level of the sea. It is, therefore, as much as three 
or four hundred feet higher than the Pueblo Hills. Thence south- 
ward the descent is rapid, until you come to another valley, not so 
wide and not so low as that just passed, but like it in all its character- 
istics. Indeed, it is part of the same valley. 



436 FORENSIC. 

This is watered by the Capitancillos Creek. Cross that creek, and 
you come to the foot of the great mountain — the main Sierra — the 
Sierra Azul — which lifts up its head nearly four thousand feet toward 
the sky. Of course, this mountain forms the great feature of the land- 
scape. It is visible in every direction for nearly fifty miles. There it 
stands looming up against the background of the southern sky, and 
limiting the horizon to every eye that is raised in that direction. Of 
all natural objects, this is the one least likely to be mistaken for any 
other. 

An absurd attempt has been made to confound the mountain and 
the low hills together. The only reason ever given for saying that 
they are one and the same is, that they are connected together by a 
low ridge running transversely across the valley which divides them. 
It is true that such a ridge exists, or rather that the valley at one 
place is not so much depressed as it is at other places. The ridge in 
question is four liundred feet lower than the low hills, and two thou- 
sand four hundred feet lower than the mountain. It is a water-shed, 
on one side of which are the sources of the Capitancillos, and on the 
other those of the Alamitos. The former stream runs between the 
low hills and the mountain, and turns the western end of the low hills. 
The other flows eastward, and turns the eastern end of the hills. The 
two streams pass down and meet together at the northwestern end of 
the valley, where they form the Guadalupe River, and through it dis- 
charge their waters into the bay. 

But does that connection between the hills and the mountain make 
them one and the same elevation ? Such connections between differ- 
ent elevations are so common that it seems to be a law. The Laurel 
Hill and the Alleghany, two parallel ranges of mountains, are con- 
nected together by the Negro Mountain Eidge, which runs across the 
valley between them, and divides the waters of the Monongahela from 
those of the Alleghany River ; but nobody has ever thought that the 
Laurel Hill and the Alleghany are the same mountain for that reason. 
The same thing occurs on the eastern side of the Alleghany. Wills 
Mountain runs in some places close to the Alleghany, and the two are 
connected by a ridge which divides the waters of the Potomac from 
those of the Susquehanna ; but Wills Mountain and the Alleghany 
Mountain are not the same, and have never been confounded together 
by anybody who had sense enough to know a hill from a hollow. 

As it is with elevations of the earth's surface so it is with bodies 
of water ; they may be connected together without being the same 
thing. The Atlantic Ocean and the Mediterranean Sea are connected 
together at the Straits of Gibraltar ; but no system of geography 
teaches us that the Island of Sicily is, therefore, an island in the At- 
lantic. The Golden Gate connects the waters of the Pacific with the 
Bay of San Francisco ; but suppose a county line, or the line of a land 



FORENSIC. 437 

grant, calls for the ocean as its terminus, would any surveyor in his 
senses think he had responded to that call by running to the waters 
of the bay ? 

Those who maintain that the mountain and the low hills are the 
same, use words which are a contradiction of themselves. Connection 
between two things does not imj^ly identity, but diversity. When a 
man tells you that two things are one and the same thing, because 
they are connected by a third thing, he talks that peculiar kind of non- 
sense which one is always guilty of when he does not know what he 
is talking about. 

These two elevations, the Lomas Bajos and the Sierra Azul, are 
without doubt separate and distinct elevations. The land which lies 
between the foot of the Sierra and the foot of the Pueblo Hills is 
known in the parlance of the country as the Canada de los Capiian- 
cillos, or the Valley of the Little Captains. The traditional history 
of the country says this name was given after two dwarf Indians, who 
were the chiefs of their tribes, and who had their habitation in that 
neighborhood. Even if it were a misnomer to call this a valley, does 
that make any difference ? The people there understood themselves 
when they called it so ; and for practical purposes it does not matter 
whether the name was scientifically adjusted to the subject or not. 
We know what is meant when a person speaks of sunrise and sunset, 
although it be true, astronomically, that the sun neither rises nor sets. 
For all purposes of common life, the whale is called a fish, though 
natural history tells us that he belongs to another order of animals. 
If these parties asked for the Canada de los Capitajicillos, meaning to 
include all the land up to the mountain, and the Governor understood 
that he was granting all the land to the mountain, it matters not 
whether, properly, it was all valley land, or all mountain land. 

But the fact is that it is a valley, and it is but one valley. It is 
watered by these two streams, the Alamitos and the Capitancillos, 
from their sources on each side of the ridge, already sj^oken of, to the 
point at which they meet and form the Guadalupe River. The valley 
encircles the low hills. If you desire to see the whole of it, you must 
start at the ridge, travel down through the valley along the banks of 
the Capitancillos Creek, turn to the right around the western end of 
the hills, thence up through the broader part of the valley, keeping 
along the course of the Alamitos Creek, around the western end of 
the hills, until you come to the place from whence you started ; and 
in that distance you will not have traversed one foot of land that is 
not properly valley land. You will not have been anywhere out of the 
Canada de los Capitancillos, but you will have gone quite around the 
Lomas Bajos, which are in the valley 

Somewhere in the valley, which I have thus attempted to describe, 
lies a league of land which the government of Mexico granted to 



438 FORENSIC. 

Justo Larios. That much is admitted to be true. But it has been a 
subject of dispute whether the land, so granted lies next to the mount- 
ain or down at the Pueblo Hills, and how far it reaches east and west. 
The call of the grant is for an eastern boundary adjoining the western 
line of the grant made to Jos^ Eeyes Berreyesa about the same time, 
and this line is described in both grants as commencing at the junc- 
tion of the Arroyo Seco and the Arroyo de los Alamitos, running 
thence southwardly by the eastern base of a little hill {lomita), and 
onward by a straight line to the Sierra. The southern boundary, as 
called for, is the Sierra. The western is "the Arroyo Seco on the side 
of the establishment of Santa Clara," which by the admission of all 
parties means the Capitancillos Creek. There is no call in the grant 
for any natural object as defining the northern line. That was mani- 
festly left open, because it was impossible to say where it could be run 
so as to take in exactly a league. The construction given to the grant, 
by the Supreme Court and by the District Court, locates the league 
of land upon the three boundaries expressly defined in the grant itself, 
extending it northwardly far enough to include the proper quantity. 
The true criteria for the eastern, southern, and western lines are the 
natural objects called for, and the criterion for the northern line is the 
quantity of land granted. 

This construction having been already given to the grant by de- 
crees which are conclusive between the claimant and the Uni^ted States, 
it is not necessary to go behind those decrees for the purpose of show- 
ing that they are right. But unquestionably they are right. The 
grant itself describes the location of the land granted. On the south 
it is " colindante con la Sierra.'''' This word colindante has as clear 
and plain a signification in the Spanish language as any word in any 
language can have. It is translated by the two Latin words adjacens 
and contiguus, which signify lying next to, toucliing with. The ety- 
mology of the Spanish word itself shows very clearly what it means. 
Lifide, lindano, lindero, are synonymous terms, and mean always a 
landmark, a boundary. Co is the latin cum and the English "with." 
Colinda7ite signifies coterminous, adjoining. Two divisions of the 
earth's surface which are coUndantes must have a common boundary ; 
there can be nothing between them but a line which has length with- 
out breadth. If Justo Larios had a league of land colindante with the 
mountain, then his land begins where the mountain ceases, and the 
mountain ceases where his land begins. To say that he shall have any 
other terminus or boundary on the south than the mountain would be 
to take away from him the land that was granted. On the east, he is 
said to be colindante with Berreyesa, and for the same reason he runs 
to Berreyesa's line on that side. On the west there is no dispute about 
the creek being the true boundary. 

If his survey, as made by the Surveyor-General and asserted by the 



FORENSIC 439 

claimant to be right, does run to the mountain and not further than 
to the foot of the mountain, then, as all parties have admitted from 
the beginning of this dispute to the present time, he is no further 
south than he has a right to be. It has never yet been asserted that 
he can be pushed down into the plain except by showing that the 
''Sierra," as described in the grant, is the low hills, and not the main 
elevation. The controversy has always been on the question where 
the mountain begins, not whether the Larios grant goes to the mount- 
ain. What did the parties mean, and what did the Governor mean, 
by the word " sierra," when they gave that as the southern terminus 
of the eastern line, and described it as the boundary on the southern 
side ? 

It must be perfectly manifest to the coui-t, as it has been to every- 
body else who has examined this case, that if the eastern line be satis- 
factorily settled the other boundaries will adjust themselves. If that 
line, the division between Larios and Berreyesa, runs from the forks 
of the creek to the mountain, then the mountain becomes our south- 
ern limit. The western boundary is not disputed, and, as the northern 
line must be run for quantity, it of course must depend upon the 
other three. So, therefore, when we settle the eastern line we have 
determined the whole dispute. Accordingly you will find by the rec- 
ord that every battle has been upon the course and the extent of that 
eastern line. Berreyesa desired that it should be located further to 
the westward, and persons who were in possession of the hills desired 
it to be shortened so as to stop at the foot of the hills as if that were 
its true terminus. With these latter originated the absurd theory 
that the low hills were the mountain, because they were connected with 
the mountain by a ridge. 

Now, I aver that this eastern line, which constitutes the whole 
subject of dispute, is fixed with a perfect and absolute certainty that 
belongs to no other land boundary in all California. *' I know whereof 
I affirm," and appreciate the responsibility which I take upon myself, 
when I declare that there is no farm in the Valley of the Susquehanna 
or the Hudson whose owner knows or can know any one of his lines 
better than this court can know that line when they look at the evi- 
dence. Nay, there is not a town lot in any city of this Union, where 
land is worth a thousand dollars a foot, whose limits are open to less 
of fair and honest dispute. The line we claim by has never been 
honestly denied by any one who understood the subject, unless his 
mind was wholly warped by prejudice, or his faculties paralyzed by 
self-interest. 

The history of that eastern line is written down in the title-papers, 
and it can not fail to impress you when you come to read it. 

Larios and Berreyesa lived near to each other, below the foot of the 
low hills, and not far from the creek. They cultivated but little laud, 



440 ■ FORENSIC. 

for the plain reason that they had no land which was fit for cultiva- 
tion. The hills were too broken for the plow, and the plain below the 
hills was a poor, gravelly, sandy soil, where all the witnesses concur in 
saying that nothing could be grown. It was so dry that by the 10th 
of June every sjiear of grass upon it lay withered and dead upon the 
ground. From June to January it was as destitute of herbage as 
Pennsylvania Avenue is now. They lived upon the produce of their 
flocks, as Job and Abraham and Saul and David did. Their wealth 
consisted in the large flocks of horses and cattle and sheep that roamed 
over the hills immediately behind their residence. Those hills were 
covered with a luxuriant crop of wild oats, upon which their cattle 
could feed and fatten during the winter and summer. 

Each of them claimed a league of land, but they had no titles 
which would stand the test of judicial scrutiny. The dividing-line 
between them had never been legally established ; they could not 
prove where it was ; neither could assert his right against the other ; 
yet the land that lay between their houses, and upon the hills back of 
their houses was more valuable to them than any other land claimed 
by either. It was the portion of their land least likely to be given up 
without a contest. Under these circumstances, it was the most nat- 
ural thing in the world that a dispute should arise between them 
about the division-line. Accordingly you find that in the spring of 
18i2 somethmg like a quarrel did take place. This waked them up 
to the necessity of having their domains legally defined. Both of 
them, almost simultaneously, sent in petitions to the Governor, each 
asking for a grant to himself by the boundary that he claimed. The 
petitions and the disenos show what was the subject-matter of the 
controversy. Larios asked for a line due south from the Pueblo Hills 
to the mountain, running at least a quarter of a mile eastward of his 
own residence. Berreyesa, on the other hand, insisted also upon a 
south line, but running directly past the house of Larios, so that Larios 
could not put his foot out of his own door without becoming a tres- 
passer on the land of Berreyesa. The dispute then was about a strip 
of land a quarter of a mile in width, and extending three miles and a 
quarter from the Pueblo Hills to the foot of the Sierra. In their cir- 
cumstances, it was worth a struggle, and the struggle resulted as 
might have been expected from the characters of the two parties. 

Berreyesa was a very demonstrative and somewhat overbearing old 
gentleman. He had been a soldier in the earlier part of his life, and 
he carried some of the habits of the camp into his private affairs. He 
boasts largely of his military services, and, though he does not tell 
what battles or what sieges he was in, what hair-breadth escapes he 
made by flood or field, nor of being taken by the insolent foe, he does 
recount, with a great deal of self-complacency, how he rose from rank 
to rank until he reached the dignity of a sergeant, when he retired 



FORENSIC. 441 

without pay or plunder, to repose upon his laurels. His petition, 
where it speaks of his neighbor Larios, has, all through it, the tone of 
a bully. Larios, on the other side, was a meek man, perhaps a weak 
one. At all events, when he was reviled, he reviled not again. He 
set forth his purchase of the land from Galindo, and the other grounds 
of his demand, in a way so modest and pretensionless that you can 
hardly help thinking favorably of him. Berreyesa had also the ad- 
vantage over him in superior cunning. Before he carried his petition 
to the Governor he armed himself with a report from an alcalde, which 
recommended that a grant be made to him with a line past the house 
of Larios, while Larios appeared with nothing but a naked statement 
of his rights. 

The Governor saw that this was a serious dispute between two 
colindantes, and he determined that it should be settled in such a 
manner as to preclude future controversy. He therefore referred both 
the petitions, or rather the subject-matter of both, to the Prefect of 
the First District, the highest judicial officer in his department ; and 
directed him to call the parties before him, to confront them with one 
another, to hear their respective proofs and allegations, to ascertain 
where the line ought to be, and to report the result of his investiga- 
tions, so that the grants might be made in a way that would be just 
to both parties. The prefect did as he was bidden. The parties came 
before him, and he succeeded in conciliating them. They agreed upon 
a line. Larios was overborne by Berreyesa. The line adopted, though 
it was not exactly past the house of Larios, was within a few rods of 
it. Berreyesa got nineteen twentieths of the land in dispute. But 
thBy were both satisfied. Larios was satisfied, because it gave him 
peace with his domineering neighbor. Berreyesa was more than satis- 
fied — it wrapped him up in measureless contentment — because it gave 
him greatly the best of the bargain. They continued to be satisfied 
ever afterward. Three months subsequently, in another transaction, 
they referred to their agreement before the prefect, as final and bind- 
ing. They accepted their grants by that boundary, and no dispute 
was ever heard of between them afterward ; no trespass was committed 
across the line by themselves, their servants, or their cattle. Each 
could say to the other, and doubtless Larios did say in his heart to 
Berreyesa, what Abraham said to Lot when they divided the pasture- 
grounds on the plains of Jordan : " Go thou to the left, and I will go 
to the right ; and, I pray thee, let there be no strife between me and 
thee, or between my herdsmen and thine, for we be brethren." 

Now, I submit to the court that it would be one of the strangest 
events that ever occurred in the history of human affairs, if it were 
true that this line was not, after all, so clearly established as to be indis- 
putable. It ran through a region where natural objects abounded, by 
which it could be intelligibly described. The parties were perfectly 



442 FORENSIC. 

familiar with the whole face of the land. They desired to define it 
with perfect clearness. They invoked the aid of the j)ublic authorities 
to assist them. They were satisfied that they had succeeded. The 
prefect who advised them was also convinced that he and they both 
understood where the line was to be, and so did the Governor. Can 
it be that they were mistaken ? Let us take the description of the 
line which they agreed upon, and see whether there is any ambiguity 
about it. 

The beginning-point fixed upon is the Junction of the two creeks. 
About that fact there has never been any dispute. What was the 
course of it ? They said it should run from the starting-point south- 
luard. The legal meaning of '^ southward" is due south, if there be 
nothing else to control it. But a natural object was called for, the 
eastern base of a small hill which rises not far from the forks of the 
creek from the midst of the surrounding level land of the valley. The 
call for a south line and for the eastern base of that hill happen to be 
precisely consistent. Some of the earlier surveys made the base of the 
hill two or two and a half degrees east of south. The last survey was 
made with great care and skill, and by it the base of the hill was ascer- 
tained to be precisely south from the forks of the creek. Then they 
declared that this south line, running past the eastern base of the hill, 
should go straight to its terminus without angle, crook, or bend. It 
remains that we ascertain what the terminus is. Before them, on the 
course of the south line, lay the green hills upon which their cattle 
were feeding at that moment ; and in the blue distance behind the 
hills rose the great mountain, barren, rugged, and bare, two thousand 
feet higher than the hills. To say that they did not know the differ- 
ence between their own pasture-grounds on the hills and the barren 
mountain beyond the hills, is Avholly preposterous. It is still more 
absurd to suppose that they would voluntarily exclude their pasture 
from the grants they were asking for, and leave the hills vacant, so 
that the Governor might grant them the next day to somebody else, 
who would drive their cattle down upon the dusty plain, where every 
head and hoof of them would starve in a week. 

This description, considered alone, without reference to the map, 
makes the line too clear for doubt. They did intend to start at the 
forks of the creek, to run southward past the eastern base of the 
lomita, and onward by a straight line over the hills to the foot of the 
main Sierra. 

But the prefect knew very well that a mere verbal description, 
which reaches the mind only through the ear, is always liable to per- 
version. He determined, therefore, that he would leave it to no quib- 
bling argument upon the meaning of words ; he would submit it to 
the more faithful sense of sight ; it should be an ocular, not merely a 
logical demonstration. He took the map which had been prepared by 



FORENSIC. 443 

Berreyesa, and on wliich every object referred to in the description of 
the line was carefully, though rudely, laid down and marked in such 
a manner as to make it certain what he meant by it. There was the 
Sierra Azul, the loma» bajos, the lomita, and the water-courses, with 
the name of each object written under or over it. The prefect took 
this map and drew across it a dotted line, beginning at the forks of 
the creek, and going straight past the eastern base of the lomita, over 
the hills to the foot of the mountain. He referred in his report to 
this map of Berreyesa with the dotted line upon it, and made it a part 
of his report. It is referred to in both the grants as showing where 
the true line is. 

It is a sin and a shame that any denial of a fact so plain as this 
should have been tolerated in a court of justice. It is not creditable 
to the laws of this country, that they are capable of being so perverted 
as to keep a man in litigation on a question so incontestably clear. It 
is a foul scandal upon the administration of justice that we are here 
now for the third time trying to get a right established which depends 
upon a fact so entirely free from doubt. Yet it is upon a disjDute 
about the course and the distance of that line that all the opposition 
ever made to our claim has been based. 

Upon what sort of evidence have they undertaken to deny that it 
is where we allege it to be ? The record shows none whatever. Not a 
single spark, not a scintilla, of evidence has ever been adduced, upon 
any occasion, in any court, that was calculated to raise even a doubt 
about it. No surveyor, public or private, has ever gone upon the 
ground and come back with a statement that it could be run, consist- 
ently with the calls of the grant, in any but one way. No witness has 
ever stated a fact upon which an opposing theory could be based. No 
one has ever sworn even to a contrary opinion. No man who has 
sense enough to set a Jacob's - staff in the ground, and take sight 
across a compass, can declare that the line is not run where it ought to 
be, and in the only place where it can be run, without violating, what 
all parties here admit should not be violated, the calls of the grant. 

The first survey was made by John R. Snyder, in the employment 
of Grove Cook, to whom Larios had sold the land, in July, 1845. The 
survey was made in 1847, after Cook had heard of the attempt to ap- 
propriate his property by certain persons who pretended to have- dis- 
covered a treasure upon it. The line then run by Snyder started at 
the forks of the creek, ran eastward of the mine, and up to the mount- 
ain as it runs now. 

Afterward Stratton ran the same line for Berreyesa, who' had cast 
a covetous eye upon the quicksilver hills ; but Stratton could not per- 
vert the line, nor turn it out of its course, nor stop short of its termi- 
nus, and he therefore placed it precisely where the Surveyor-Greaeral 
put it afterward, and where Snyder had placed it beforci. 
29 



iU FORENSIC. 

In 1855 Hays and La Croze, under instructions from the General 
Land -Office, made another survey. They ascertained the objects 
which should control the course and termination of the line together 
and settled them carefully. That was before any decree was made ex- 
cept the decree of the Land Commission which simply referred to the 
grants and the map as showing where the line should be located. 

Afterward again the same line was surveyed twice by Mandeville, 
once for Berreyesa, and once for us, and again both surveys ran pre- 
cisely in the same way. 

That is not all. It became necessary to ascertain where the eastern 
boundary-line terminated, whether at the mountain or the foot of the 
low hills, before the rights of the Guadalupe Mining Company could 
be determined. They got a survey made of the fourth of a league 
which had been sold to them. By that survey, as by the others, it was 
decided that the southern line of the grant to Larios was the foot of 
the mountain. 

Every survey, tlierefore, official and unofficial, public and private, 
has concurred. All agree that the line starts at the spot, is on the 
course, and terminates at the place where we say it does. 

No surveyor, with the grants and the disenos in his hand, could fail 
to find the place of beginning ; no one could miss seeing the eastern 
base of the lomita ; nor was it possible for human perversity not to 
perceive that the terminus of the line was at the foot of the great 
Sierra. The line was marked by monuments which could not and 
would not be trifled with. The blue mountains, the green hills, and 
the rolling streams, testified to it with a voice Avhich no sophistry 
could obscure and no perjury could contradict. 

On the other side of the question, the principal name that is used 
by our adversaries for the purpose of mystifying the subject, is that of 
Mr. William J. Lewis. You can not read the testimony of that witness 
without perceiving that he is a man of very considerable ability, and 
of much skill in his jDrofession as a surveyor and a draughtsman. Nor 
do I know anything that would justify me in making any imputation 
upon his integrity. He was a professional man. He was willing to 
sell his talents to anybody that would pay his price for them. He 
would do any job in his line that was desired in the way most satisfac- 
tory to his employers ; and after he had done it, he did not consider 
himself at all responsible for the use which might be made of the ma- 
terials which he had furnished. This man was employed for years (not 
all the time, but off and on) in doing everything that a surveyor and a 
draughtsman could do except going, like an honest man, upon the 
ground, running the line in dispute, and saying whether it was at the 
right place or the wrong one. They did not ask him to do that, 
which might have been done in a day, but they kept him for months 
and years, running over the hills, measuring every height and chaining 



FORENSIC. 445 

every hollow, and making maps and diagrams of all the ranches for 
fifteen miles around. At one time you hear of him at the top of 
Mount Umunhum, four thousand feet up toward the sky. The next 
thing you know, he is down in some dark hollow, measuring away at 
something else, but always as far as he can possibly get from the line 
in dispute. One day he is off ten miles to the east of Berreyesa, and 
then again he is surveying a rancho somewhere north of the Pueblo 
Hills, clean out of sight of this region. When asked on his oath why 
he had done certain things, he gave, as a reason, that he was requested 
to do so by those who had employed him. 

Some things he could do, and some other things were beyond the 
reach of his skill. He could make what he called a survey of the 
Larios rancho, locating it below the mining ridge, so as to make it 
appear that Larios was absurd enough, in 1842, to take a grant of that 
naked plain and leave out the hills upon which he relied for a living. 
How did they get Lewis to do that ? By withholding from him the 
evidence which showed where the true location was. They gave him, 
not the grant to Berreyesa and Larios, but only the diseno of Larios, 
on which the low hills did not happen to be laid down. By closing 
his eyes upon the evidence, and getting him to assume that Sierra 
del Encino meant not the mountain, but the low hills, it was not a 
difficult thing for him to suppose, or to say, that the southern bound- 
ary of the Larios tract was the foot of the Lomas Bajos. He made this 
assumption contrary to the truth, as proved by clouds of witnesses, 
that Sierra del Encino meant the great mountain, so called because 
of the remarkable oak-tree which grew upon its side — contrary to all 
the evidence which declared that the Lomas Bajos were never known 
nor called by any such name. But though he did it contrary to the 
evidence, it was probably not his fault, for the evidence was carefully 
excluded from his sight by tliose who employed him. He had not 
seen the map of Berreyesa, upon which the common line of Berreyesa 
and Larios both was laid down. 

When asked on his cross-examination whether he could have made 
such a survey with the Berreyesa map before him, he admitted that 
that would have been another thing. So this attempt to get the au- 
thority of a surveyor on the opposite side of the scale against all the 
other surveys was a failure, and it was abandoned of course. 

Some other things Mr. Lewis could do for his employers. He 
could make maps, and all those maps, or most of them, with which 
your tables are covered, came from that mint. The object being 
not to exhibit the truth, but to pervert it, they are as far as possible 
from being a simple exhibition of the lines which bound these two 
grants, or either of them. They purport to be topographical maps of 
a large region of country, and are laid down in such a manner as to 
exhibit the survey in a most unnatural position. The red lines, which 



446 FORENSIC. 

you see running from one point to another, were none of them placed 
there to show what the lines of the survey are, but were made as the 
foundation of some theory upon which the survey could be contradict- 
ed and impugned. It will be observed, also, that these maps represent 
the land near the forks of the creek as being a perfectly level plain ; 
looking at it casually, you would suppose it to be a rich alluvial bot- 
tom as even as the surface of a lake. It is not so. It slopes from 
the southeast to the northwest, and the surface is, like that of other 
semi-mountainous formations, unequal. But he takes care to make 
this appearance of valley terminate just where his employers wanted 
to say that the mountain began. When he gets to the upper part of 
the valley he magnifies every little inequality so as to make it look 
just like the mountain. He marks the various elevations upon the 
mountain and the hills. Here it is fourteen hundred feet ; here 
twelve hundred ; here eleven hundred ; but down in the valley behind 
the hills, where the land is depressed seven hundred feet, he does not 
mark the heights of those places, but shades it all in the same way as 
he does the mountain heights. It would never strike you, looking on 
this map of his, that the land here is seven hundred feet lower than the 
low hills on one side, and twenty-seven hundred feet lower than the 
mountain on the other side. This thread of water looks as if it were 
running along on the brow of the mountain, and you wonder why 
such a stream should not rush down the mountain-side in a succes- 
sion of cascades ; but the reason why you wonder is, because you do 
not know that between your point of view and that water there is a 
range of hills seven hundred feet higher than the bed of the creek. 
Such maps as these, well marked as they are with red lines, would 
furnish the material for many a long si:)eech, and many a one has 
been made upon them, in court and out of court, that has " split the 
ears of the groundlings " sundry times. 

But all the time these things were in the course of manufacture, 
Mr. Lewis knew, and his employers knew, that the true line which it 
was their object to pervert and falsify was just where the Surveyor- 
General said it was. He had not been measuring that country all over, 
and making diagrams of every spot of ground in a circumference of 
fifty miles, without knowing what he was doing it for, or without 
knowing where the true line was. I say he knew it, and if he had 
told at first what he did know, the question would have been settled 
long before it was. But he did settle it at last. When he was sworn, 
he was made to talk plain English, and tell the plain truth. On 
pages 355 and 356 of this record, you find him speaking to the very 
point. He was told, ^'Take your map and show us whereabouts on 
that map lies the line that the Surveyor-General has made " ; and like 
a man who understood the obligations of his oath, he did what he was 
bidden to do. He marked the Surveyor-General's line with red ink 



FORENSIC. 447 

and said, "It lies here from to ^." Eemember, if your honors 
please, that is the line by which we claim. Several other questions 
were then put to him, and finally it was demanded of him to say where 
is the line that Fernandez marked upon the map of Berreyesa. Now 
we shall see whether Mr. Lewis will contradict all the other surveyors 
or not. I pray you mark his answer well on page 356. He says that 
the dotted line upon Berreyesa's map runs/rom to R as nearly as it 
can le determined, that is to say, it runs precisely where the Surveyor- 
General has yut it. He attempts some qualification of this answer, 
and by that means clinches the nail which previously he had driven to 
the head. He says that there is room for a difference of opinion ; 
this is a long line made by the production of a shorter one, and a 
slight difference at the point of beginning might make a considerable 
difference at the other end. Then he was asked this question in sub- 
stance : Making allowance for every possible difference of opinion 
about the point of beginning, what difference would that make at the 
southern end of the line ? and he answers, "At the utmost not more 
than fourteen chains.^' 

Thus the only witness upon whom our adversaries could rely to 
contradict our survey deserts them at the last moment. With one 
breath he sweeps away all the rubbish that he and his employers had 
been gathering about it for years — sweeps it away as the wind sweeps 
the chaff from the summer threshing-floor. " Eoll up the maj) of 
Europe," said William Pitt, when he heard of the battle of Austerlitz 
— " roll up the map ; it will not be wanted for twenty years to come." 
Well might Castillero and Barron have said, "Eoll up these maps and 
carry them away ; they are of no use now, and never will be until this 
evidence is forgotten." Yet this cast-off trash of the New Almaden 
Company, treated with contempt by the court below, abandoned by 
its authors because they were ashamed of its hollow falsehood, is 
brought here, vamped over again, rehashed, reproduced, and paraded 
for the delectation of this court by the counsel of the United States. 
But he takes precious good care not to call your attention to the 
plain, direct, clear truth, stated by Lewis himself. Why ? Because 
he knew very well that the simple fact thus proved would go through 
and through his flimsy sophistry, as a battering-ram would go through 
a wall of pasteboard. He must make a speech, forsooth, and if he 
would acknowledge the fact that Lewis proves, his speech would 
come to a sudden and a violent end ; if he but looked it in the face 
for one instant it would strike him dumb upon his feet. 

We have no right to complain of the courts, or of their dealing 
with this testimony. The long delay which the claimant has endured 
is not the fault of any court that I know of ; for the decisions have 
been uniform, constant, without variation, in favor of that line, down 
until the last decision of Judge Hoffman. When the case went be- 



448 FORENSIC. 

fore the Land Commission, that board concurred with all the surveys 
that had been made before. They understood the responsibility that 
was upon them, for they knew that the line run, as they described it, 
according to the calls of the grant and referring to the Berreyesa map, 
would include the mine. When the case was taken to the District 
Court, a very elaborate investigation of everything connected with all 
the lines was made. After years of controversy there, and the produc- 
tion of a large amount of evidence on both sides, the court deter- 
mined according to all the evidence — for on one side there was really 
no evidence at all — that the eastern line began at the forks of the 
creek and ran to the mountain, and that the mountain was our south- 
ern boundary. They gave us, however, more land than we were en- 
titled to, by the error which they committed in relation to the north- 
ern line. That decree was brought into this court by appeal, and it 
was here decided that there was no ambiguity about the grant, that 
the three lines of the land granted to Larios, on the east, south, and 
west, were well defined by natural objects on the ground, and the 
fourth line should be so run as to include, between itself and the other 
three lines, exactly one league of land. That league was confirmed to 
us, and declared to be our property. When the case went back to the 
District Court, that court, notwithstanding the protest of the claim- 
ant, opened everything for reinvestigation : a new contest took place 
again about the eastern line and the southern line ; the whole ground 
was gone over again, and another year of litigation followed. But it 
ended in a decree declaring that we were entitled to the land within 
the boundaries of the survey as now claimed. 

In the mean time the very same questions arose incidentally in 
two other cases. Berreyesft's claim went befoi'e the Land Commission. 
His western line was our eastern line, and the decree there was the 
same as in our case. The District Court and the Supreme Court 
both affirmed the decision. The Guadalupe Mining Company was the 
owner of one quarter of the Larios grant upon the western side, and 
prosecuted the claim for it separately. It was necessary, there also, 
to determine whether the Larios grant ran to the mountain, and it 
was decided by the Land Commission and the District Court that it 
did. Nine decrees under the act of 1851 were successively pronounced 
u,pon that same subject-matter, and every one of them affirmed 
our right to the mountain as the southern boundary of the lands 
granted to Justo Larios. With these adjudications establishing our 
right, all standing unreversed upon the record, who could interpose 
to prevent us from getting a patent ? The United States could legally 
and justly make no further objection. But other parties procured 
the passage of the Survey Law of 1860, which was a grievous and in- 
expressible hardship upon the claimants under Larios. It did not 
promise to the parties in opposition the remotest chance of defeating 



FORENSIC. 449 

our right ; but it put into their hands the means of delaying and 
baffling what all knew to be the claim of the true owner. The pro- 
visions of the Survey Law have been used for that purpose. Castil- 
lero, Barron, Parrot, and others, with Foster for a make-weight, 
brought the survey into court. 

The survey as made by the proper officer of the United States, the 
Surveyor-General — the survey which is the subject of revision now 
and here — was made in precise accordance with the decree of the Dis- 
trict Court under the law of 1851. No one ever denied that ; on the 
contrary, its validity is actually attacked in this court on the very 
ground that it does follow the decree precisely. 

Here I must pause to answer the assertion of the Attorney-Gen- 
eral's assistant, that our survey is void, because it is in exact conform- 
ity with the decree which authorized it. According to his notion 
the Surveyor-General, wlien he comes to locate a tract of land which 
has been confirmed under a Mexican title, may go vagabondizing all 
over the country, and survey to the claimant any land he pleases, so 
that he does not survey the same land that was confirmed. If a 
claimant asserts his right in the Land Commission and the District 
Court to a certain league of land, and the United States opposes the 
claim, upon the ground that his title applies not to that league, but 
to some other league, and the decision of the court having jurisdiction 
of the subject is that he owns the league he claims, the Surveyor- 
General may, notwithstanding the decree, survey to him the other 
league, which the court has pronounced to be public land, or the pri- 
vate j)roperty of some other citizen. That was precisely the case here. 
The alienees of Justo Larios asserted their right to a league of land 
bounded by the mountain on the south. The United States averred 
that his title was for a difEerent league, of much less value, bounded 
by the Pueblo Hills. The court confirmed and established his right 
to the league at the mountain, and the assistant of the Attorney- 
General now argues that the survey is void, because the Surveyor- 
General measured and marked upon the ground the land that was 
confirmed by the court, and not other land which the court decided 
to be public property. That such a proposition should be made 
by any lawyer, in any court, would be strange enough ; but that 
it should have been made by a gentleman in the service of the 
United States, and in the Supreme Court, is a fact which I would 
not believe without the sensible and true avouch of mine own eyes 
and ears. 

But this is a point upon which the Attorney-General and his as- 
sistant are again in conflict. The chief law officer of the Govern- 
ment, with a candor and a fairness which does him honor, utterly re- 
pudiates the doctrine of his assistant. He says that the survey must 
be made of the same land which has been confirmed, and admits that 



450 FORENSIC. 

the Surveyor-General has no right to survey and return for patenting 
other land, which belongs to other parties or to the public. 

The act of Congress defining the duties of the Surveyor-General 
expressly and in plain terms declares that, when a confirmation is 
made under the act of 1851, he shall survey the same land that is 
confirmed, and this is repeated more than once. 

If you will look at page 405 of this record, you will find the in- 
structions given to the Surveyor-General of California by the Land- 
Office. Foremost, principally, and first of all, is the great funda- 
mental rule that he must take care, when surveying confirmed lands, 
always to follow the decree, and never, in any case, presume to depart 
from the lines there described. The Surveyor-General has never, in 
any case, violated these instructions, or presumed to entertain an ap- 
peal from the decision of the Land Commission, the District Court, 
or the Supreme Court. 

If this survey is void because it follows the decree, then all the 
surveys in California are void for the same reason. If the surveys are 
void, so are tiie patents, and there is not a single title established in 
all California. 

I admit that there may be cases in which the decrees themselves do 
give to the Surveyor-General a certain amount of discretion, which he 
is to exercise according to his best judgment. For instance, a claim- 
ant has confirmed to him one league of land, lying within limits that 
contain eight, ten, or twenty leagues. There he may prima facie take 
his league of land anywhere that he chooses to have it within those 
boundaries, and he must signify his election to the Surveyor-General. 
It is the Surveyor-General's duty to see that the location shall be 
made in such a manner as to do no injustice, either to the public or to 
any private party who may have rights to land in the same locality. 

Where the grant is for a certain quantity of land within limits 
containing a larger quantity, the decree of the court must necessarily 
follow the grant, and confirm to the party such title as he has. If it 
be a floating grant, the court confirms it as a floating title, and leaves 
to the Surveyor-General the duty of anchoring it by a survey ; but if 
the grant be for a certain specific piece of land, with certain boundaries 
expressly described as the boundaries of the land granted, there the 
decree is false, unless it confirms the title of the claimant to the very 
land which his grant describes. For instance, suppose the grant to 
be for a town lot, fifty varas fronting upon a certain street and extend- 
ing fifty varas back to another street, is the court not bound to decree 
that he is the owner of that same lot ? Or, suppose the claim to be 
for an island, must not the court pronounce what island is the subject- 
matter of the grant ? 

Whether a grant is a floating grant or a fixed one ; whether it ap- 
plies to a certain definite portion of the earth's surface, or applies 



FORENSIC. 451 

equally well to more than one spot, is a question of construction. It 
is the business of the court, under the act of 1851, to interjiret the 
words of the grant, and determine whether it is fixed or floating. In 
this case the grant has been construed. It received its just and true 
interpretation in this court and in the District Court. It is decided 
to be a specific grant of a certain well-defined league of land, lying 
next to the mountain on its southern side, reaching to Bcrreyesa's 
line on the east, to the Capitancillos Creek on the west, and extending 
northward as far as may be necessary to take in one league of land. 
Yet the survey is here alleged to be void, because it took in this league 
of land, so confirmed to the claimant, and did not include what was 
pronounced by the same decree to be the public projDerty of the United 
States. 

The survey was brought into court under the act of 1860. A 
monition was issued, calling upon all parties who were interested in it 
to ajjpear and make objections, if any objections they had. No one 
then thought of objecting to it on the ground that it was a survey of 
the same land which had been confirmed by the previous decree of the 
court. The claimant was bound by the decree, and therefore bound 
to accept the survey in accordance with it, for that was the only sur- 
vey he could have. The United States, being parties to the same 
decree, were also bound by it. They could start no objection 
which would not open a question which had already been decided 
by the proper court under the act of 1851, upon a full and fair hear- 
ing. 

The United States made no objections at all. That being the case, 
can they make any objections in this court ? It is not possible that 
such a perversion of justice can be tolerated here. If the Govern- 
ment had any objections to the survey, we had a right to know them 
then and there, so that if they were true we could obviate them by 
such a modification of the survey as might seem to be necessary ; so 
that if they were false and unfounded we might produce the evidence 
to show it ; and so that if the case should ever come into the appel- 
late court we might have the evidence on record which would prove 
the truth. To change the survey here, upon grounds that were con- 
cealed from us in the court below, is to condemn the party without a 
hearing. To hear us in this court upon a record which does not con- 
tain the evidence which might have been given in the court below is 
no hearing at all. The Attorney- General lay low in the District 
Court, denied that he had any objections to offer, studiously concealed 
from us the intention to make opposition, there or here, down to the 
moment when the argument in this court was about to commence, 
and then suddenly sprung upon us, from his pocket, a set of objec- 
tions never heard or thought of before. Can he do this thing ? I 
answer, No ; no more than he can set a man -trap in the middle of 



452 FORENSIC. 

Pennsylvania Avenue, and cover it up so as to catch the first unwary 
passenger that comes along. 

But the Attorney-General, at the time when he decided that no 
objections to this survey should be. made in the District Court, was 
not actuated by any evil motives, or any unjust designs upon the 
claimant. He knew then what he was doing perfectly well. He un- 
derstood the rights of the claimants, and the rights of the United 
States. He decided justly, and well, between them. He made no 
objections to the survey, because he knew that the United States were 
estopped by the previous decree. I need not elaborate that point, for 
the Attorney-General understands it now as well as he understood it 
then, and he has not ventured to assert that he can get behind the 
decree. On the contrary, he has expressly admitted that he can not. 

But there were other reasons. When the case was here first, this 
court said that the United States should not act as a contentious liti- 
gant, but as a great nation seeking to administer justice among her 
people. After nine judicial decrees had been made, upon the very 
same question of fact and law, this Government would have been a 
very contentious litigant indeed if it had tried to raise the same ques- 
tion a tenth time. An individual who would act in that manner 
would find no favor in the eyes of any court, but would be treated 
with all the marks of dislike which could be shown to a stubborn and 
unreasonable suitor. 

That was not all. Every officer of the United States knew that 
the survey was precisely right, and that the decree under which it was 
made stood firm upon the truth and justice of the case. The local 
officers of the Government in California had watched the current of 
this heady fight for seven years, and not one of them had a doubt 
about the justice of the claim. The Attorney-General's office was 
filled with reports upon it, which came by every steamer. No man in 
that dejDartment was perverse enough to misunderstand its merits. 
How could any officer object to this survey ? What could he say 
against it ? If he desired to change it, he must take some objection 
either to the course or the distance of the eastern line ; and what 
would he say about that ? If he would assert that it did not begin at 
the forks of the creek, the hot blood of shame would suffuse his 
cheek ; his face would grow redder and hotter, if he should undertake 
to declare that it did not run straight past the eastern base of the 
little hill, toward the mountain. And if there was one spot upon his 
visage where a blush might speak, it would be crimson when he would 
undertake to place upon record the averment that it did not go all the 
way to the mountain. Nay, it was not merely a legal estoppel which 
forbade the filing of exceptions ; honor, conscience, and decency de- 
manded the unequivocal admission that this survey was right. And 
that admission was made. 



FORENSIC. 453 

If this posture of affairs between the United States and the claim- 
ant is the result of any trick, scheme, or evasion of the law, the 
offense against justice was committed when the Attorney-General de- 
cided that no objections should be made to the survey. Then was the 
time the scheme was concocted ; then the trick was played ; then the 
law was evaded ; and the Attorney-General's office was a party to it. 
Upon whom does this calumnious accusation fall ? 

The survey was brought into court on the 19th of December, 1860. 
It happens, by a singular coincidence, that on that very day Mr. Stan- 
ton took charge of the Law Department. He knew every point of 
this case as I know the fingers upon that hand. If he abandoned the 
rights of the United States, he did it with his eyes wide open to the 
truth. I happen to know that gentleman as a lawyer very well. In 
some other respects, it is possible he may be beyond my depth ; 
but, in his professional character, I know him as well as one man can 
be known to another. I aver that no lawyer in this nation or else- 
where understands the ethics of his profession better, or lives up to 
the rule of its morality with a truer spirit. He was then in a purely 
professional office, and he guarded the rights of the public, as he 
would have guarded those of any other client, to the full extent that 
his sense of justice permitted him to go. Why did he order that no 
objections to this survey should be made ? I will tell you. It was 
because he was incapable of descending to the baseness of objecting to 
a claim that, in his heart, he knew to be just and right. If there had 
been a question between doing that and resigning his office, he would 
have thrown back his commission with a manly scorn. 

Mr. Bates succeeded him on the 4th of March, 1861. Surely no 
one who knows him will say that he failed, either ignorantly or will- 
fully, to place the rights of the United States in a defensible jiosition. 
It was equally impossible that he could participate in a trick to de- 
fraud the public. On his brow such a shame as that would be ashamed 
to sit. I know that he had not all the opportunities which Mr. Stan- 
ton had of understanding the details of the case ; but it required no 
great investigation. A glance at the record would tell him that all 
questions between the Government and the claimant had been already 
settled. The simplest brief upon tlie evidence would show him that 
no man, without shameless falsehood, could say anything whatever 
against the correctness of the survey. These are views which his 
whole argument here shows that he entertains at the present morpcnt, 
and he caught them then rapidly and readily. Spanish titles were no 
novelty to him ; he had lived and practiced among them all his life- 
time. He had been the judge of a land court. His mind followed a 
line as an old Indian would follow a trail through the wilderness. 
Besides, he had an abundant corps of assistants. The next man below 
him was Mr. Coffey, of whom I can say with safety that he stands 



454 FORENSIC. 

among the foremost men in the country of his age. His immediate 
predecessor, too, was at that time his habitual adviser upon all these 
subjects. Mr. Bates understood what he was doing. He knew what 
the evidence was at the time very well. Perhaps he has forgotten it 
since. His speech is silent upon the facts ; therefore I can not tell 
what the state of his memory may be. Perhaps somebody else has 
given him another version of it since, and so misled him. 

When Mr. Stanton and Mr. Bates decided that no objection should 
be made to the survey, and no appeal should be taken from the decree 
of the court below, they settled this case so far as concerned the rights 
of the United States. They had the power to settle it ; it was their 
duty ; it was the legal function of their office to determine whether 
the United States had any interest in this question, or any land in 
that place. When they made their decision, they took away from this 
court, and from all courts, the authority and jurisdiction to decide 
either way upon the same subject. It is unfair for the Attorney- 
General to come here now and attempt to divide with this court the 
responsibility which he then took upon his own shoulders. 

Other parties, who were not bound by the decree of 1858, came 
into court upon the monition, and did make exceptions. Those of 
Castillero and his party, as well as those of Foster, were overruled, and 
they took appeals, which appeals they have asked leave to withdraw. 
The Attorney-General concedes that right to them, and they are with- 
drawn, of course. With these exceptions, therefore, we have nothing 
to do ; they are out of the case. 

That brings me to the only exception left standing — that of the 
Berreyesa party, defended here by Mr. Carlisle and Mr. Williams. 
That exception is curious enough to be a remarkable feature, even in 
this most extraordinary case. I need not say to any member of this 
court that the office of an exception is to point out the distinct error 
of the thing excepted to, so that the other party may be able to meet 
it with the necessary proof, or, if it be true, to admit it. In a court 
of chancery, or a court of admiralty, when a master's report is brought 
in, and excepted to in general terms, because it gives too much to one 
party, or too little to another, such an exception is regarded as frivo- 
lous, and unworthy the attention of any court. In this case the coun- 
sel of the Berreyesas say, in their exception, that the survey includes 
land within our lines which they ought to have ; but they do not say 
how much land, or whereabouts it is, nor tell us how the line could 
be run, consistently with the calls, so as to give them more, or us less. 
From such sublime generalities it is impossible to learn what they 
would be at. The gentlemen who drew this exception, Mr. Williams 
and Mr. Sloan, seem to have been conscious that something more 
specific than this was needed, and therefore they undertook to point 
out where the line ought to be run ; they attempted to describe the 



FORENSIC. 456 

true line. That description, so made by the counsel of the Berreyesas, 
is a most singular proof that "truth is mighty, and Avill prevail." 
They say, as we say, that it begins at the forks of the creek, and runs 
southward across the low hills to the mountain, in all of which we 
most jDotently believe, and most cordially concur. Their averment 
concerning the line — its beginning, middle, and end — is precisely 
ours. They declare in their exception that it runs exactly where the 
Surveyor-General has put it. 

Your honors remember that, when the king of the Moabites 
heard that his country was invaded by the wandering army that came 
up from Egypt through the wilderness, under Joshua, he sent for 
Balaam the prophet to come and wither his enemies with a curse. 
"For well I wot," said he, " that whom thou cursest God will curse." 
He took him up to the top of a mountain and promised that, if he 
did what was desired, he would give him a great reward and high 
promotion. He showed him the hosts of his foes encamped upon the 
plain, and he said: "Come, curse me Jacob, and come, defy me 
Israel." The prophet opened his mouth and spake ; but, instead of 
cursing Jacob and defying Israel, he altogether blessed them. When 
the king complained that this was not exactly what he had bargained 
for, the prophet reialied that if he would give him his house full of 
gold and silver he could speak neither more nor less than the truth. 
Those gentlemen were like the prophet ; if Berreyesa had given them 
his house full of gold they were too honest to say anything except 
what they were constrained to say by the spirit of the truth. 

Take a retrospect now. Let us look at the log-book and bring up 
our reckoning. Our grant was admitted to be an honest one from the 
beginning. Nothing but its boundaries were ever disputed. Six sev- 
eral surveys were made to ascertain them, and every one determines 
that the lines we claim by are the true lines. We prove these surveys 
to be correct by many witnesses, and those who are called against us 
testify in the same way. Decree after decree, to the number of nine, 
gives us the land that we claim. The United States, by the act of 
their Attorney-General, admit the justice and truth of all we ask. 
Still, private parties, to baffle and delay us, put in their exceptions. 
Two of those parties retire from the contest, and that leaves us with 
one solitary foe to contend against. Berreyesa still utters an indefi- 
nite grumble, which shows that he desires to have our property, but 
does not know upon what ground he can demand it. We turn to 
him and say, "If you disbelieve in all these surveys, those made by 
yourself as well as by us, and all those decrees to which you as well 
as we were a party, come now, tell us where you think the true divis- 
ion-line between us is ? Take the advice of counsel, and set down 
your own description of the line in writing, and place it on the 
record." He undertakes to do so, and he describes the line as we 



456 FORENSIC. 

claim it exactly. After all that, we certainly should have had no fur- 
ther trouble. 

Mr. Justice Miller. — Allow me to ask you, Mr. Black, how you 
regard the decree of 1858, of the District Court, as affecting the rights 
of Berreyesa ? I understand your argument yery clearly, that the 
United States, being a party to that proceeding, is bound by that de- 
cree, so far as it settles those boundaries. 

Mr. Black. — Yes, they are settled between the United States and 
the claimant. 

Mr. Justice Miller. — Now, as to Berreyesa, who was not a party 
to that decree, but who comes in on this survey professing to be made 
under that decree, do you claim that he, also, is bound by that decree 
or not ? 

Mr. Black. — The general rule of law undoubtedly is that none 
but parties to the record, or their privies, are bound by the judgment, 
sentence, or decree which may be pronounced in any case. Besides 
that, the act of 1851 expressly declares that third parties shall not be 
bound by a decree made under that act between the United States and 
the claimants. I think, therefore, that no third party can be affected 
in this proceeding by the decree made in 1858 between the United 
States and Fossatt. 

But Berreyesa is bound by the decree in his own case. Here were 
two grants which, properly enough, are called by the United States 
twin grants. They were for two leagues of land, to two different per- 
sons, with a defined line dividing the lands of one grantee from those 
of the other. The rights of the two parties were decided in two sev- 
eral cases, and the division-line was ascertained, in both cases, to be at 
the same place. These two decrees, taken together, estopped both the 
parties. Fossatt can not assert his rights to any land eastward of that 
line, nor can Berreyesa demand what lies west of it. The two decrees 
together are the same as a Joint decree against both, or in favor of 
both ; it is conclusive between themselves and conclusive as against 
the United States. 

Nevertheless, the judge of the District Court, without an excep- 
tion which contradicted our survey, and without a shadow of evidence 
to show it was wrong, made that unaccountable decree, which con- 
verted the straight line into a crooked one. He went against all 
parties and all witnesses, and in the teeth of all the documentary evi- 
dence. Instead of the true and plainly proved line, he ordered an- 
other to be run which nobody before had ever suggested or thought 
of. If this decree, asked for by nobody, believed in by nobody, de- 
fended by nobody, but admitted by everybody to be erroneous, can 
not be set aside, there is not much use for a Supreme Court. 

I have nothing harsh or disrespectful to say of the judge who made 
that decree. He is not on trial here. It is not the interest of any- 



FORENSIC. 457 

body to defend him, and his station disarms him of the power to 
defend himself. I have no right to go beyond a fair criticism upon 
his opinion, and I can do that only so far as may be necessary to show 
that it is, what I believe it to be, a hasty, inconsiderate, and errone- 
ous judgment. 

The judge is not in the habit of deciding a case without supjiort- 
ing it by reasons either good or bad ; he is skilled in dialectics ; "for 
every why he has a wherefore." He has given us, in this case, the 
premises and the reasoning which brought him to the conclusion ex- 
pressed in the decree. I advert to them because they include all the 
arguments made by Mr. Carlisle and Mr. Williams, as well as some 
others which they do not venture to reassert. 

The first noticeable thing in the opinion is, that it concedes to us 
every fact which we have ever asserted with reference to the division- 
line. The judge admits that the true beginning of it is at the forks 
of the creek, that it runs thence southward by the eastern base of the 
loniita, a fact which he declares it impossible for any one to doubt 
who looks at the map of Berreyesa. Then he also admits that the call 
of the grant is for a straight line upon that course up to the mountain. 
Why, then, did he not follow the call as the Surveyor-General had 
done before, as he himself had done in all his former adjudications ? 
We shall see. 

He says that when Berreyesa and Larios agreed to that line, he 
thinks they intended it to run, not south, but perpendicularly to the 
general direction of the valley. I deny this utterly. In their agree- 
ment before the prefect, and in the grants which both afterward ac- 
cepted, they declared their intention that it should run south, and not 
a word is said about perpendicular. But the intention thus expressed 
by themselves is disregarded, and a totally different intention imputed 
to them, without a shadow of evidence ; and this, be it remembered, 
after their express agreement has been not only acted ujjon by the 
Governor and other Mexican authorities, but after purchases to the 
amount of millions have been made, upon the faith of it, from both 
parties. It is remarkable, too, that the judge, after assuming with- 
out evidence that their intention was to make a perpendicular line, 
does not order the line to be run according to his assumjition. He 
directs it to be carried southward to the base of the lomita, then makes 
an angle, and runs 54° west for a certain distance, where he makes 
another angle, and then goes 34° west of south to the mountain. 
Neither of these lines is perpendicular to the course of the valley ; for 
certainly the valley can not have three perpendiculars. The due south 
line is nearer perpendicular than any one of them. It is, in fact, ex- 
actly perpendicular to the direction of the valley at that place ; it 
starts at right angles with the Pueblo Hills, and strikes the mountain 
squarely. 



458 FORENSIC. 

The judge commits another error of fact "when he declares that the 
position of the lomita was misunderstood by the parties. If there is 
one thing in this case more striking than another, it is the remarkable 
accuracy with which the agreement and the grants defined the relative 
position of that little hill and the beginning-point of the line. They 
declared that its eastern base was south from the forks of the creek, 
and an accurate survey proves it to be exactly so. 

But he says that if the line be continued upon that course, accord- 
ing to the calls of the grant, it will unfortunately throw nearly the 
whole of the mining ridge uj)on the tract of Larios. This is an ex- 
pression which, I am confident, the judge did not mean to be under- 
stood as it might be construed by evil-minded persons. To the eye of 
prejudice or passion, it looks like an open confession of partiality ; 
like a predetermination to relieve the misfortune of a man who is not 
the owner of certain valuable land, by giving it to him, at the expense 
of another who is. If such a sentiment had been entertained, I think 
the judge would not have written it down, and placed it upon record. 
I mention it only as another evidence of the haste and want of con- 
sideration with which the opinion was written, and the decree made. 

The judge thinks, and in this he is followed by Mr. Carlisle and 
Mr. Williams, that he can see, in the shape of the Sierra Azul, the dif- 
ferent portions of the mountain. He assumes that certain parts of it, 
which are larger than other parts, are intended for Mount Bache and 
Mount Umunhum, and proposes that the line shall be run so as to 
strike the mountain at the place where it terminates on the map of 
Berreyesa, assuming that he knows where that place is. Now, no one 
can cast even a careless glance upon the figure, which Berreyesa called 
by the name of Sierra Azul, without seeing that it bears no sort of 
resemblance to the natural mountain itself ; it was not intended to be 
a picture of the mountain. If one part is higher or lower than the 
other, it was mere accident. All the reasoning upon which this hy- 
pothesis proceeds is based upon the assumption that the different 
objects delineated upon the map are laid down in their proper propor- 
tions to one another, and that the different parts of the same object 
are also duly proportioned. Admit that assumption to be false, and 
the whole argument falls flat to the ground. It is utterly false. There 
is no pretense of proportion about the map. Here is a fact which sets 
it in a very striking light. The house of Berreyesa is proved to be 
exactly thirty feet wide ; yet it occupies upon the map one fifth of the 
space of the whole valley. If the valley is proportioned to the house, 
it is only one hundred and fifty feet wide. If you take the valley to 
be, as it is at that place, nearly a mile wide, and the house to be laid 
down in proper proportion, then that house covers about two hundred 
acres of ground ; and if it be high in proportion to its width, it is ten 
times as high as all the pyramids in Egypt, piled upon one another. 



FORENSIC. 459 

The same logic that proves this to be Mount Umunhum, and that to 
be Mount Bachc, would have shown with equal certainty that Berrey- 
esa lived in a structure so vast that all the men in America could not 
liave put it up in half a century. 

Supposing that one or both of the parties, at the time they made 
that agreement, had actually believed that a straight line, run upon 
the course which they agreed to, would strike the mountain at a dif- 
ferent place, would that be a reason for setting aside the agreement 
and disregarding the grants, after the acquiescence of all parties for 
twenty years ? Certainly not. • If a surveyor had gone upon the 
ground, and had run that line, when the grants were not more than 
a month old, and Larios had said that he was disappointed in the out- 
come of the line he agreed upon, could any officer run it contrary to 
the grant for that reason? No, the answer would be, "Your agree- 
ment has been executed ; the grants have been made to you and to 
your neighbor both — to you for the land on one side, to him for the 
land on the other side — and it is now too late to repent." A fortiori 
would the same answer be given to Berreyesa, and a multo fortiori 
must it now be given to the alienees of Berreyesa, after purchases have 
been made to so large an extent from Larios and his assigns. 

But this map of Berreyesa does show conclusively that both he and 
Larios understood perfectly that the straight line which they bargained 
for would run where it does run, east of the ridge, and east of the 
New Almaden mine. The ridge divides the waters of the Capitancil- 
los from those of the Alamitos. The mine is near that ridge. The 
Alamitos Creek is laid down on Berreyesa's map. The division-line — 
the line in controversy — as laid down on the diseno itself, runs across 
the Alamitos Creek, the whole of which is east of the mine, not across 
the Capitancillos, which is west of it. If the parties were familiar, as 
everybody admits that they were, with the ground, then the line must 
have been intended by them to run very nearly, if not exactly, where 
it does. This fact, showing the place where they intended to cut the 
creek, is as conclusive upon the subject as any fact of that nature can 
be, and it is absolutely without contradiction. 

To reverse this decree is a legal necessity, and you can not do that 
without restoring the division-line to the place where the Surveyor- 
General located it. There is no other place for it. You can not find, 
in all this record, any other description of that line which it is possible 
for you to follow. If you take the exceptions of the Berreyesa party 
themselves, you find them describing the Surveyor-General's line as the 
true one ; nor is there a spark of evidence which would justify any 
court in adopting another. 

If the lines of our survey be established, if it be true that they are 
laid upon the ground according to the calls of the grant, with a straight 
line between us and Berreyesa on the east, the mountain on the south, 
30 



460 FORENSIC. 

and the creek on the west, are we not perfectly right in saying that 
our league of land lies up next to the mountain ? I put that question 
now, because some people have taken it into their heads that these are 
what they call external lines, and that our grant is a floating grant. 

We claim that this survey is right, because it is made under a de- 
cree of the District Court, which confirms to us the land which lies 
within the lines of the survey ; and, according to that decree, our land 
is there and nowhere else. If it had been a floating grant, you can 
not say that it is a floating decree. Nobody denies that the decree is 
definite and distinct, and confirms to us this specific piece of land. 
The Attorney-General himself does not deny that that decree is bind- 
ing upon us and upon the United States. Mr. Bates, sitting there in 
his proper scat, yesterday denied that he meant to go behind the de- 
cree. When I imputed that intention to him, he used the emphatic 
word "never." I think he spoke that upon deliberation. But his 
assistant counselor has gone behind the decree in the whole of his ar- 
gument. He and the Attorney-General have been running foul of 
one another on that point all the time. 

Mr. Justice Cliffoed. — You contend that the controversy should 
have ended with the decree of 1858. 

Mr. Black. — Nay ; I know that it did end there. If that decree 
had been brought up on appeal, this court might have reviewed, and 
reversed or affirmed it. Thus, you might have declared that the land 
did not lie there ; but inasmuch as the decree of 1858 is in full force, 
and is a confirmation of the very land surveyed to us, and a confirma- 
tion of no other land, the survey is right if it follows the decree ; and 
if not, not. Without an appeal from the decree of 1858, the same 
question there determined can not be raised in another and a different 
case. The Attorney-General admits, what is manifestly true, that this 
is a different case. 

Mr. Justice Cliffoed. — There has been a new survey and new 
evidence since then. 

Mr. Black. — There has been a survey, and new evidence by pri- 
vate parties has been given, to show that it is wrong. No evidence 
has been offered on the subject, one way or the other, by or against 
the United States, for the United States have admitted it to be right. 
As between us and the United States, what is the standard of right 
and wrong by which the survey is to be judged ? Certainly nothing 
in the world but its correspondence, or failure to correspond, with the 
decree which had previously settled our boundaries. The survey was 
open to such objections on the part of the Government as would show 
that it did not correspond with the decree ; the United States might 
have said, " This survey is erroneous, because it differs from the de- 
cree " ; but neither they nor the claimant could allege that it was 
wrong because it followed the decree. 



FORENSIC. 461 

We are not bound to prove that the construction given to the grant 
was right. Suppose it was a floating grant, the court below has con- 
clusively determined that it is for a certain specific league of land. 
If the grant were utterly lost, if it were buried in the bosom of the 
ocean, if every witness tliat had ever seen it was dead, if all memory of 
it was extinguished from the face of the earth, we should still have 
a good title to that particular league of land, by virtue of the decree. 

That decree not only stands in full force and unimpeachable, by 
virtue of its own inherent and essential force, but there is another 
reason why it can not be moved. This court pronounced exactly the 
same opinion, and gave the same construction to the grant that the 
court below did. You declared that there was no ambiguity about 
the grant, that the boundaries of the land were well-defined on three 
sides, and that the fourth line should be run for quantity. The de- 
cree of the court below, and the survey now under revision, both fol- 
lowed the decision here. Has the court the right now to go behind 
its own decision ? I say. No. In Pennsylvania it has been held that 
the Supreme Court may reverse a judge of the Common Pleas, and 
then, when he follows the decision, reverse him again, and so on toties 
quoties, as often as the higher tribunal sees proper to change its mind. 
I maintain that a decision once pronounced by the court of last re- 
sort becomes the law of that case, and all courts, including the one 
which made it, are bound by it ever afterward, so far as that same 
case is concerned. I am glad to know that this rule is acknowledged in 
California. In the twentieth volume of "California Reports," Lees 

vs. , is an opinion of which the reasoning is very conclusive, and 

the authorities full, to show that such is and ought to be the rule. 

But suppose you are not technically bound by your decision, are 
you not morally bound to stand by it ? Can this court, consistently 
with the obligation it owes to the country, go back and reverse a de- 
cision made by it six years ago, settling the title to a most valuable 
piece of property, and thus ruin thousands of men who have invested 
their capital, and their enterprise, and their industry, in purchases 
which they made upon the faith of that decision ? 

However that may be, is it, can it be, a debatable point that the 
parties to the decree in the District Court are bound by it, they and 
their privies ? If it be thought necessary to prove that the decree is 
right, I can do that against all comers. If your honors think you 
have jurisdiction in this case to rejudge the justice that was adminis- 
tered between the same parties in another case, you will find that the 
construction given to the grant by the District Court was exactly 
what it ought to have been. It was not a floating grant any more 
than it was a floating decree. The land granted by the Mexican na- 
tion to Justo Larios is defined. 

It can not be reasonably pretended that the lines described in the 



462 FORENSIC. 

grant are not the lines of the very tract which the Governor intended 
to be his property. His league of land was intended to be coUndante 
con la Sierra on the south. Can that have any meaning but one ? 
ITpon that boundary his land must lie on that side, extending to the 
east as far as Berreyesa's line, and westward to the creek. Where, 
then, shall the north line run ? Just so far north of the mountain as 
may be necessary to take in the requisite quantity. Let me illustrate. 
Suppose I have a lot of ground in the city of Philadelphia, contain- 
ing forty perches, and extending in an oblong-square from Chestnut 
Street on the north to Walnut Street on the south. I sell to my 
neighbor twenty-five perches, and describe what I sell to him as being 
bounded " on the north by Chestnut Street, on the west by Ninth 
Street, on the east by an alley," and I say nothing about the fourth 
line, because I do not know precisely where it can be run so as to in- 
clude the twenty-five perches. But I make that fourth line just as 
certain, by the limitation of quantity, as if I had described it upon the 
ground. Would you not say of such a contract what Judge Camp- 
bell said of the grant to Larios, " There is no ambiguity about it" ? 
If my grantee, under such a contract, would insist upon a convey- 
ance for the southern, or Walnut Street, end of the lot, would I not 
give him a conclusive answer when I would show him that Chestnut 
Street was the boundary by which he bought ? Upon the other hand, 
if I, finding the Chestnut Street end of the lot to be the most valua- 
ble of the two, should insist upon his taking the other, and go into 
court with him upon the controversy, is it likely that I would find 
a member of the legal profession low enough to undertake my cause ? 

Again, suppose that Justo Larios had taken a grant from the 
Governor describing the subject-matter as a league of land bounded 
on the north by the Pueblo Hills, with two side lines on the east and 
west, but without any call for a south line, and then suppose that 
Larios, or his alienees, after the discovery of quicksilver in the hills, 
had determined to claim by the mountain as a southern boundary, and 
measure back between the side lines toward the north for quantity, 
would not such a claim be overwhelmed with contempt as soon as it 
was set up ? Yet this is the very thing which our adversaries are con- 
tending that Larios has not only a right to do, but which they de- 
clare he is bound to do. They insist that he must abandon the 
boundary-line that is given to him upon the mountain, and the land 
which was granted to him, and go down to the Pueblo Hills, where he 
has no boundary, and take land to which he has no title. 

If we can abandon the boundary that is assigned to us in the grant, 
and go northward to locate our tract elsewhere, how far may we go 
and what shall be the rule ? There is nothing said in the grant about 
the Pueblo Hills. There is nothing there to stop us. The moment 
we cut loose from the mountain, we are launched out into unlimited 



FORENSIC. 463 

space ; we may go down to the bay, or beyond it, just as well ; the 
world is all before us where to choose ; and ^ if they can drive us from 
the mountain, they can send us off for an indefinite distance. 

But let us assume, argumenti gratia, that this was a floating 
grant ; concede all that has ever been averred by the other side upon 
that point : then Larios had a right to locate his land according to 
his own election, anywhere within the space that lies between the 
mountain and the fictitious north line assumed by our opponents. 
And has he not elected ? Who will deny that the survey is an elec- 
tion ? It is not only his election, but an election which he was assisted 
to make by the officers of the Government themselves. It was ap- 
proved by the judicial tribunals to whom that subject was committed ; 
it was approved by the Surveyor-General, whose duty it was to mark 
the lines upon the ground ; it was approved by the Attorney-General, 
the law officer of the Government, whose function it was to make 
objections to it if any just or legal objection existed. He claimed his 
league of land upon the mountain, and so far down upon the plain as 
was necessary to take in the quantity, and left the land south of him 
to be used by the Government as it saw proj)er. The Government 
accepted what was assigned to it, surveyed it, and invited all persons 
who desired to settle upon it to come and take possession. Now the 
Attorney-General proposes to unsettle what he settled before, to 
change what was fixed by his own act. The effect (I do not say the 
design) would be to defraud those who have purchased from Fossatt 
since the election, and give his alienees no redress except what might 
consist in making reprisals upon the grantees of the Government who 
bought upon the faith of the same election. But the Attorney-Gen- 
eral insists that we did not make our election properly. What right 
has he to say that now ? Why did he not tell us it was wrong when 
we were in the District Court together, for the vei*y purpose of having 
the errors of it corrected ? What right has he now to complain, after 
his former silence has induced the expenditure of millions upon the 
faith of it ? It is impossible that he can believe it just or fair to 
make a houleversement at this time of day. 

Those who say that this was a case for election have impugned the 
election actually only on one ground : it does not cover the land sold 
by Laurencel, as the attorney of Fossatt, to Isaac Foster. I admit that 
where the owner of a floating grant sells out his right, and describes 
the location of it in his deed, neither he nor his grantee can properly 
or justly have it located in another place. That may often be true 
where a part, as well as the whole, has been sold. But the sale, in order 
to have any such effect, must imply not only an assertion of right to 
the land so sold, but a relinquishment of all claim to other land. 
Election means a choice between two things by a person who can not, 
and who knows he can not, have both. A man who has a title to 



464 FORENSIC. 

a certain specific piece of land, and who, mistaking his boundaries, 
makes a sale outside of them, is still safe in his original claim. By 
selling that which is not his, he does not forfeit what belongs to him. 
It is also another rule that, where several sales have been made, the 
final election must be consistent with the elder, and not with the later, 
sales. 

Now look at this sale to Foster, and the other sales that have been 
made by Larios and his alienees. It was in 1853 that Foster bought 
a small piece of land near the creek. He had squatted there upon pub- 
lic land. Doubtless he had heard the big boasts of the New Almaden 
Company, that they would drive us from the hills down upon the plain. 
He thought it best to get a quit-claim deed. Laurencel, then acting 
as attorney for Fossatt, was willing to give him a conveyance of such 
right as his principal had, but refused to covenant against the title of 
the United States. 

Now the Attorney-General is desperately concerned for Foster; 
his righteous soul is vexed from day to day for fear that Isaac Foster 
will suffer by the location which he consented to himself three years 
ago. He urges upon you the sufferings of Foster, though Foster him- 
self implores him simply to let his business alone, and sends here one 
of the most distinguished counselors in the country, Mr. Johnson, to 
say that he is entirely satisfied, and to get him out of this business alto- 
gether. 

But while the Attorney-General is thus sorely tried by his sym- 
pathy for Foster, his heart has no drop of pity in it for other persons, 
who bought the other end of the land long before Foster. Larios 
sold to Grove Cook in 1845, referring for his southern boundary to 
the grant which called for the mountain. Cook, in 1847, made open 
claim, and gave universal notice of his right to go to the mountain, by 
the survey which Snyder made for him upon the ground. In 1850 
Cook sold to Wiggins, describing the southern boundary as being at 
the mountain. Wiggins mortgaged the land to two different persons, 
and again the description of the southern boundary was the mount- 
ain. Both mortgagees foreclosed upon him, and the decrees of fore- 
closure made by the County Court declared the mountain to be the 
boundary. By that boundary the land was sold at sheriff's sale, and 
Fossatt bought it. Fossatt sold one quarter of a league to the Guada- 
lupe Mining Company, again by the mountain boundary. These 
vendees entered into possession by that boundary, expended large 
sums of money, and made valuable improvements. All these sales 
were made long before the quit-claim deed to Foster for his little 
piece down at the creek. It was before that time that Fossatt and the 
Guadalupe Mining Company both presented their claim to the Land 
Commission, and that claim was adjudicated in their favor, and the 
mountain assigned to them as a boundary. 



FORENSIC. 465 

But all these real sales on the northern side are ignored on account 
of the subsequent quit-claim deed to Foster. The millions for which 
the southern side sold are to count nothing. It is no harm to swindle 
the purchasers there, but it would be terrible if anything but good 
should happen to Isaac Foster. Will not the Attorney-General con- 
descend to remember that Foster is begging him to let his business 
alone ? 

I suppose some reply is due to that part of the argument made by 
the assistant counsel of the United States, which has neither been 
directly repudiated nor expressly indorsed by the Attorney-General, 
The gentleman who made it appears to believe in it himself, for he 
uttered it with all the ardor of conviction. 

It is a most wonderful thing, a phenomenon such as I have never 
seen in a court of justice before, that any counselor should undertake 
to reverse and totally change a decree from which the party he rep- 
resents has taken no appeal, and upon grounds which were not made 
known in the court below. Mr. Wills must have overlooked that part 
of the record which shows that the United States took no appeal in 
this case. It can not be possible that he did not know the rule of 
law which makes an appeal indispensably necessary to such a purpose. 
He is not a very young man ; he has had many opportunities of learn- 
ing that simple and well-defined truth. Indeed, it has been decided 
several times during this very term, in cases where he himself was 
concerned for the United States. He must have supposed that the 
United States did take an appeal. That is the only explanation that 
can be given of his conduct. When I correct him upon that matter 
of fact, I have given a sufficient answer to all that he has said about 
the decree. 

He not only opposes the decree now under review, but he denounces 
eyerything that has been done in the case, from its beginning to the 
present time. He declares, in substance, that everybody who has ever 
been engaged in this cause ; all the counselors concerned in it at every 
period of the litigation ; all the judges who have ever examined it ; 
all the surveyors who have ever gone upon the ground — misunderstood 
the whole subject entirely. He, and he alone, has comprehended the 
case rightly, and practically applied to it the true principles. He has 
surrounded the subject, he says, after the manner of a circular hunt, 
and driven everything before him in toward the center from every 
part of the circumference. We, says he, take our stand upon thfe lo- 
mita in the center of the valley, and we dissipate all the fogs, and 
clouds, and darkness, like the blaze of the noonday sun. We may ad- 
mit this remarkable superiority of his, and still fairly object to its 
exhibition now. We ought to have had the benefit of this luminous 
exposition while it was yet possible to walk by it. If the Attorney- 
General had an assistant counselor who was capable of being to this 



466 FORENSIC. 

subject what the sun is to the universe, he ought to have mounted 
him on that lomita, and set him to blazing there a good while ago. 
It is cruel, at this late hour, to burst upon us with this overpowering 
splendor, only for the purj)ose of showing that we are ruined past 
recall. He should not have hid his candle under a bushel, or, rather, 
he should not have closed the sun up in a dark-lantern, for all this 
length of time, and left us to grope about in darkness and in igno- 
rance. 

Mr. Wills asserts that his demonstration is perfectly complete ; he 
has settled the whole affair as nobody else ever thought of settling it 
before, and nothing remains for the court to do but to order an entire 
new set of surveys to be made. And how ? ''According to the con- 
clusions of this argument," says he. You are invited, as I under- 
stand him, to put his argument into the mandate, and send it down 
to the Surveyor-General, with orders to make a survey accordingly. 

I beg leave to express my doubts about this. With much defer- 
ence I submit to the court the question whether it is not just as 
likely that Mr. Wills is mistaken as it is that everybody else has been 
blundering for the last fifteen years. I will examine what he calls his 
ihxQQ " leading pr-opositions,'' which he thinks he has so completely 
demonstrated. But, before I do that, you will allow me to show what 
his ideas of a demonstration are. 

By the Larios diseno the Sierra del Encino is delineated on the 
southern side of the tract, and the Pueblo Hills on the northern ; the 
Lomas Bajos are not laid down at all. What is meant in the nomen- 
clature of that country by the Sierra del Encino can not be a subject 
of the smallest doubt. The great oak-tree on the side of the main 
elevation proves itself. When Larios called the mountain depicted on 
his map by the name of Sierra del Encino it was impossible to say 
that he meant the low hills, which were never called by that name. 
He meant the mountain, and he said so in writing on the diseno 
itself. But Mr. Wills thinks he has demonstrated the fact to be 
otherwise. And such a demonstration ! He took, in your presence, 
the two disenos of Larios and Berreyesa and put them together, and 
by a little pulling and hauling could make the Sierra del Encino on 
one map nearly fit to Lomas Bajos on the other. Now, if two adjoin- 
ing tracts of land were both carefully measured by the same person, 
and with the same instruments, and a map of both made upon the 
same scale, you would expect the different parts to fit one another, 
but otherwise you would not, and could not, expect any such thing. 
These two tracts were never measured at all. The maps were made 
without measurement, by different persons, without concert between 
them, and without the slightest reference in either to any kind of 
scale or proportion. The chances tliat an object delineated upon both 
would be laid down at places exactly corresponding, do not amount 



FORENSIC. 46Y 

to one in a million. Yet this has been called a demonstration ! Now, 
let us look at the other demonstrations. 

He says that in this case the petition, as well as the grant, was for 
the valley, and the valley extends to the foot of the low hills ; that is 
the natural boundary of the valley ; and the natural boundary of the 
valley is the legal boundary of the grant : ergo, our limit must be the 
foot of the low hills, and not the mountain, where we have proved 
that our line' runs. These facts are not true ; but pass that and look 
at the logic. The proposition means, if it means anything, that the 
name by which a ranch is called in the grant ought to determine its 
limits, and not the lines which are expressly given as boundary-lines. 
Let me show you how such a rule would work. 

All the grants in California, or nearly all, have names. These 
names are selected arbitrarily, and very often without any regard to 
the fitness of things. One person calls his rancho by Spanish words 
which signify *•' a willow grove," because there are willows on a few 
acres of it at one corner. According to this new doctrine he can take 
nothing but the willows, though his lines may include a hundred 
times as much. Another has a tract that is called "Los Picos," be- 
cause there are several sharp hills in the center. Shall he be held to 
the tops of the hills ? Another is named "Isla do Santa Eosa," be- 
cause a river runs through the tract, and in the river is a little island 
called ''Santa Rosa"; but the tract itself is five or six leagues in 
extent, while the island contains not more than three or four acres. 
An unfortunate gentleman is the owner of a grant named in the title- 
papers "Eio de los Americanos." Measuring it by the lines given in 
the grant, it extends along the bank of the American River four 
leagues, and has a depth of two leagues. To this he is entitled, if the 
calls of the grant prevail ; but, if the name that the Governor called 
it by is the only standard, then the bed of the river is all he can take. 

But the redudio ad absurdum is furnished in this very case. The 
grant issued to Berreyesa is named "Canada de los Capitancillos." 
The grant to Larios is for "Los Capitancillos." Berreyesa must, 
therefore, have the valley of the Little Captains, while Larios can take 
nothing but the Little Captains themselves. The natural boundaries 
of the two little Indians are the legal boundaries of his grant, and he 
can have no more ! 

It is a waste of words to spend them in refuting such a " demonstra- 
tion " as that. It is enough to answer it by simply saying that we 
claim according to our line. The counselors, and the judges, and the 
surveyors, who have considered this case so long and so carefully, have 
not been mistaken in supposing that to be the true rule. The United 
States, speaking by the mouth of their own Attorney-General, here in 
your presence, have declared that the calls of the grant must govern. 
You will not, I trust, forget the plain and unequivocal admission to 



468 FORENSIC. 

that effect made by Mr. Bates, which puts him in direct conflict with 
his assistant counselor. 

The gentleman has another demonstration. He says there ought 
to be such a survey made here that those wlio were colindantes under 
the Mexican Government will continue colindantes under the Ameri- 
can Government. If he means by this to say that we must go upon 
all sides of our tract, to those places and things which the grant calls 
for as our colindantes, I admit it, of course. It is for that reason that 
the mountain is our southern boundary, Berreyesa's line the eastern, 
and the creek the western. But his application of the principle 
seems to be that we ought to leave our colindantes on the south, east, 
and west, and go northward to find a boundary which the grant does 
not mention. A man named Bernal has a grant on the northern side 
of the Pueblo Hills, concerning which the expediente, the grant, and 
all our title-papers are profoundly silent. Mr. Wills thinks we should 
manage to lay our tract next to his, which is not called for, at the 
expense of taking it miles away from the other boundaries, which are 
called for. 

Another of his ''leading propositions" is that these surveys, both 
of Berreyesa and Larios, should be laid out in rectangular parallelo- 
grams ; all the sides should be straight, and all the corners should be 
right angles. I answer, that if the calls of the grant are for rectan- 
gular parallelograms, it ought to be laid out so ; but, if one of our 
lines lies along the foot of the mountain, and the mountain is 
crooked, we can not remove the mountain ; or, if it be a creek, it 
must be remembered that streams of water, in all countries, will 
meander. 

The honor of the United States is deeply concerned in this case. 
The land we are claiming never belonged to this Government. It was 
private property, under a grant made long before our war with Mex- 
ico. When the treaty of Guadalupe Hidalgo came to be ratified — at 
the very moment when Mexico was feeling the sorest pressure that 
could be applied to her by the force of our armies and the diplomacy 
of our statesmen— she utterly refused to cede her public property in 
California unless upon the express condition that all private titles 
should be faithfully protected. We made the promise. The gentle- 
man sits on that bench who was then our minister there. With his 
own right hand he pledged the sacred honor of this nation that the 
United States would stand over the grantees of Mexico and keep them 
safe in the enjoyment of their property. The pledge was, not only 
that the Government itself would abstain from all disturbance of them, 
but that every blow aimed at their rights, come from what quarter it 
might, should be caught upon the broad shield of our blessed Consti- 
tution and our equal laws. 

It was by this assurance, thus solemnly given, that we won the 



FORENSIC. 469 

reluctant consent of Mexico to part witli California. It gave us a 
domain of more than imperial grandeur. Besides the vast extent of 
that country, it has natural advantages such as no other can boast. 
Its valleys teem with unbounded fertility, and its mountains are filled 
with inexhaustible treasures of mineral wealth. The navigable rivers 
run hundreds of miles into the interior, and the coast is indented with 
the most capacious harbors in the world. The climate is more health- 
ful than any other on the globe. Men can labor longer with less 
fatigue ; the vegetation is more vigorous, and the products more 
abundant ; the face of the earth is more varied, and the sky bends 
over it with a lovelier blue. Everything in it is made upon a scale 
of magnificence which a man living in such a commonplace region as 
ours can scarcely dream of — 

"... which his eye must see 
To know how beautiful this world can be." 

That was what we gained by the promise to protect men in the 
situation of Justo Larios, their children, their alienees, and others 
deriving title through them. To let them be plundered in the face of 
such a pledge would be the last point to which human baseness could 

go- 
How would such a story as this sound in the cars of the world ? 

The United States obtained unlimited wealth by promising to protect 
private property under Mexican grants. The protection was claimed 
by a grantee whose land was more than commonly valuable. He pro- 
duced his title, and all the public officers admitted it to be genuine, 
honest, and valid. A captious objection was raised to his boundaries ; 
but he met it by proof so simple and clear that he confounded all op- 
position. Witness after witness testified in his favor, and not one 
against' him. Survey after survey defined his limits with mathemati- 
cal precision, and no man could be found ingenious enough to make 
any other. Decree after decree, to the number of nine, i^ronounced 
his right to be incontestable. At length the chief law officer of the 
Government interposed his authority to stop this persecution, by de- 
claring that no further objection should be made, and no more appeals 
should be taken. The title thus proved, thus adjudicated, thus ac- 
knowledged, passed rapidly from hand to hand, the price increasing 
at every transfer, until it swelled into millions. But, six years after 
the last decree, and three years after the Attorney-General had decided 
in favor of the title, that same Attorney-General came into the Su- 
preme Court, without an appeal from the court of original jurisdic- 
tion, and demanded that this same property should be taken for pub- 
lic use, upon grounds which the owners had never been allowed the 
chance of disproving. 

To suppose it possible that your honors might accede to this un- 



470 FORENSIC. 

lawful and unjust request would be inconsistent with the respect due 
to the court. But I can imagine how such a sentence would shock 
the moral sense of the world. It would be an act of such gross and 
shameless perfidy as never blackened the brow of any nation before. 



PEIRCE vs. THE UNITED STATES. (FLOYD ACCEPT- 
ANCES.) 

SUPEEME COURT OF THE UNITED STATES. 

These claimants have been treated hardly and harshly, even if 
their right had been doubtful, which it is not. They were refused 
payment at the AVar Department, and no reason was given. Congress 
declined to interfere, though a committee of the Senate reported in 
their favor ; and, what was still worse, they were compelled to see 
their case mutilated and disfigured by the Court of Claims. 

It is now to be determined just like a cause between two private 
parties. When the sovereign comes into a court he submits his rights 
to the same test that would be applied to those of anybody else. The 
rules of pleading and evidence are the same ; the means of ascertain- 
ing the truth are the same, and the truth, when it is ascertained, has 
precisely the same effect and operation. In a case remarkably similar 
to this, tried before Judge Baldwin, in the Circuit Court, it was sug- 
gested to him that he ought to look to the interests of the United 
States. He seemed to resent it ; he sat there not to take care of any- 
body's interests, public or private, but to adjudicate upon the rights 
of two litigant parties ; both were entitled to justice ; neither of them 
to favor. In the United States vs. The Bank of the Metropolis, this 
court unanimously declared that, when the United States became par- 
ties to negotiable j^aper, they acquired precisely the same rights, and 
subjected themselves to the same liabilities, as a private party. The 
judges of that time, all of them, declared that they knew of no differ- 
ence, except that the United States could not be sued. But now they 
can be sued. The only difference that ever did exist is abolished by 
the act of Congress Avhich gives the jurisdiction you are now exercising. 

If this were a case between two individuals, would there be any 
doubt about it ? The rules of commercial law, which define the rights 
and obligations of parties to a bill of exchange, are the simplest part 
of our jurisprudence. They are founded on the principles of com- 
mon honesty, which every man is bound to observe at his peril, and 
which no man can violate without being conscious that he has done 
wrong. They are so reasonable and natural that they are the same all 
over the world. They are understood alike, not merely by judges and 



FORENSIC. 471 

lawyers, but by all business men of common capacity ; and so well 
understood that, though paj^ers of this kind are made every day, by 
thousands and tens of thousands, and hundreds of thousands of them 
are constantly in circulation, there is not a dispute about them in one 
case out of a million. 

According to these rules, it can not be denied that, if the United 
States accepted the bills now in suit by an officer who, at the time he 
did so, was acting within the scope of his legal authorit}^, such accej)t- 
ance was a contract by the Government to pay the bills to the holder, 
at maturity, without delay or defalcation. If the pajDer, after accept- 
ance, and before maturity, was taken by a hona-fide holder for a valu- 
able consideration, the contract was absolute and indefeasible. If the 
holders had such notice as took away from their purchase the quality 
of good faith, then they have it subject to all the equities existing be- 
tween the original parties. But, in either case, or in any case, the 
acceptance itself raises a presumjDtion that it was given for a good con- 
sideration ; that the consideration has not failed, and that the accept- 
ors had in their hands, at the maturity of the bills, funds of the 
drawees sufficient to j^ay it. In favor of a holder, loitliout notice, this 
presumption is conclusive ; in favor of a holder, loitli notice, it is still 
strong and 'powerful, so that it can be repelled only by clear and cogent 
proof that the fact is otherwise. The acceptor of a bill is bound like 
the maker of a promissory note, and neither of them can be relieved 
from the legal liability, except upon grounds which would justify a 
chancellor in decreeing the cancellation of a bond. 

We can not argue the question whether these are bills of exchange 
or not. It is denied on the authority of the Bank of the United States 
vs. United States (3 Howard, 711). It being decided, in 15 Peters, 
that a paper exactly like this was a bill of exchange, it is certainly not 
a matter of much consequence that the court has determined, in 
another case, that another paper, of a different form, is not a bill of 
exchange. 

There are, therefore — there can be — only three questions in this 
cause : 

1. Did the United States accept these bills ? 

2. Are the claimants holders of them in good faith ? 

3. Have the United States shown any equitable defense ? 
Whether the United States accepted the paper, depends upon the 

power of the Secretary of War to accept it for them, and on their be- 
half. If he had no authority, the Government is not a party to the 
bills ; the acceptances are not evidence of any legal liability ; they are 
mere nullities, and no negotiation of them, whether with or without 
notice, could give them any validity whatever, as against the United 
States. 

But what kind of authority must we show ? Certainly not express 



472 FORENSIC. 

and special authority to accept these very bills nominatim. It is 
enough, if it appear to your satisfaction, that the Secretary had a gen- 
eral autliority, wliicli comprehended an act like this within its limits. 

This proposition is so plain that I would waste no time upon it, if 
its importance had not been magnified by the court below and by the 
counsel on the other side. They make it the turning-point of the 
case. Without denying, in direct and explicit terms, that a secretary 
has authority to accept the bill of a contractor for army supplies, they 
insist that, under the circumstances of this particular case, Mr. Floyd 
had no poiver to accept the bills of Eussell, Majors, and Waddell, 
which are now in suit, and therefore these acceptances are null and 
void. In other words, they hold that the legal validity of any official 
act depends, not on the authority of the officer who did it, but upon 
i\iQ propriety of its exercise, in the case under consideration. Accord- 
ing to this view, any contract of the Government, though made by an 
officer having full authority, may be set aside, if his successor shall be 
of opinion that it ought not to have been made at that time, upon 
that occasion, or with that person. Nay, he may do more : he may 
declare it null and void ah initio, at whatever expense of loss or injury 
to the other contracting party, or to third persons who have, in good 
faith, acquired an interest in it. 

We maintain that the Secretary had authority to do an act like this 
vipon which we base our claim ; that this act is valid and binding, the 
act of the Secretary being the act of the Government ; and it is no 
matter whether he exercised the power well or ill, properly or improp- 
erly, lawfully or unlawfully. We deny that the power was abused in 
this case ; but if it was, then the Government which gave him the 
power must suffer for his misconduct. 

Inasmuch as the defense seems to rest entirely upon this point, I 
may be allowed to pursue the subject somewhat further than might 
otherwise seem to be necessary. 

The rule, as you know very well, is laid down in all the books, and 
in all the adjudicated cases, and always in the same form of words, 
that a principal is bound by the acts of his agent luithin the general 
scope of his authority. Whether he has been true or not to the inter- 
ests of his principal is a question exclusively between themselves. So 
it is, and must be, with respect to those public agents who derive their 
authority from the law. If you bestow upon any person power to do 
a thing, and then make a law restraining him in the exercise of that 
power, and he breaks through the restraining law without transcend- 
ing the limits of his authority, his act is as valid as if done in the prop- 
er exercise of his authority. In short, it is not sufficient to invali- 
date any official act that it was an abuse of power. To make it void, it 
must be shown to be — ultra vires — a usurpation, or an attempt to 
usurp a power which did not belong to him at all. The Court of 



FORENSIC. 473 

Claims had authority to decide all cases of the class to which this one 
belonged ; but it was wholly unlawful and improper for them to de- 
termine this case, as they did, in the teeth of the evidence ; neverthe- 
less, we can not for that reason show their decree to be void. Many a 
judge, and many an executive officer, has done acts for which he 
ought to be impeached, or otherwise punished, as a criminal ; but 
those acts, which were criminal in him, were nevertheless binding 
upon the public, and the parties interested in their validity. 

A cashier of a bank has, and must necessarily have, the power to 
bind the corporation by making it a party to negotiable paper. But 
suppose a provision in the charter and by-laws forbids any officer of 
the bank to accept a bill or draft, payable in the future, unless the 
drawer, at the date of the acceptance, had cash funds in the bank suf- 
ficient to meet it ; and the cashier, overlooking or disregarding that 
prohibition, accepts such a bill from a drawer who has no money, but 
who gives collateral security sufficient, in the opinion of the cashier, to 
make the bank safe. The bill so accepted goes into circulation, and 
at maturity it comes back to the counter of the bank in the hands of 
a hona-fide holder, with a demand for payment. Can the bank set up 
the illegal acts of its officer, which are its own acts, and declare the 
paper to be void on that account ? No, certainly. The holder of the 
bill must be paid ; and if the bank loses by the transaction, its remedy 
is against the officer who abused his trust. 

You have applied this principle, with inflexible severity, to acts done 
by the officers of public as well as private corporations. The case 
which I thought the hardest at the time was that of Curtis vs. The 
County of Butler. That was a suit upon county bonds issued by the 
commissioners to a railroad company. After a close and careful ex- 
amination, you held that the act of the Legislature did give to the 
commissioners power to make and issue negotiable bonds, with cou- 
pons attached for the interest. But the commissioners grossly violated 
the law which should have regulated them in the performance of their 
duty. They handed over the bonds to a bogus railroad company 
without receiving a cent of consideration, and the people of the coun- 
ty were most inhumanly swindled — saddled with a debt which it then 
seemed impossible for them to pay without a tax amounting almost to 
confiscation of their property. But there was no relief. What they 
complained of was the unlawful exercise, by their own officers, of a 
power which they themselves had bestowed upon them. The thorns 
that tore them grew upon the tree they planted. 

In Woods vs. Lawrence County, and Kennett vs. Mercer County, 
you repeated the same doctrine in language still stronger. There the 
very same law which authorized the commissioners to make the bonds 
commanded and enjoined them not to exercise the authority until the 
grand jury should do certain things, which the grand jury never did. 



474 FORENSIC. 

But you regarded this as a mere circumstance. You declared that you 
would presume all circumstances that were necessary to make the ex- 
ercise of the power effectual, and, for the purpose of sustaining the 
legal validity of negotiable paper in the hands of a hona-fide holder, 
you would make that presumption conclusive. The principle was re- 
asserted in Gelpcke vs. City of Muscatine, and in another case which 
came up from Indiana, in which the city of Madison was a defendant. 

You have seen the inside of many cases where the contest was upon 
the validity of bonds given by municipal corporations to railroad and 
other improvement companies ; and I think you know that not one in 
twenty of those securities would stand the test of an inquisition into 
the special circumstances attending every particular case. The appli- 
cation to them of the doctrine laid down by the Court of Claims would 
make them nearly all as worthless as so much waste-paper. 

I submit, also, that the rule contended for on the other side would 
be very uncomfortable to the bondholders of the United States. Those 
securities are now scattered all over Europe and America, in the hands 
of men who know literally nothing about the circumstances under 
which they were issued. They were taken and paid for upon an un- 
derstanding, distinct and universal, that the purchaser was bound to 
make no inquiry, except whether they were made and attested by 
officers who had a legal authority to pledge the faith of the United 
States for their payment. Are you willing now to say that their 
value depends upon circumstaiices ? Are they worthless and void if 
it can not be shown that they were issued at the right time, to the 
right man, under the proper circumstances, and for a full considera- 
tion ? If one of those bonds was given in payment of a pre-existing 
debt, must the holder be able to show that the debt was Just and 
proper ? If they were sold in the open market, must he be prepared 
to prove that the agent was legally appointed, that he sold the bonds 
for a full price, and made return to the treasury of every cent he got ? 
Perhaps you may think that even by that rule there are no circum- 
stances which will Justify the repudiation of the bonds. But can you 
safely leave them to the mercy of a future administration, which may 
have a very diiferent opinion about the circumstances in which our 
public debt had its origin ? Ten years hereafter you may have a 
Court of Claims Just as anxious to repudiate the obligations of this 
administration as the present Court of Claims is to repudiate those of 
a former administration. Ten years hence you may have an Attorney- 
General who will be a repudiator as much worse than the present At- 
torney-General as he is worse than the person who held that office ten 
years ago. Such an officer would seize upon any circumstance to bring 
on a conflict between the Government and its creditors. 

Of course, there can be nothing wrong about that portion of the 
debt which was created by the War Department under the adminis- 



FORENSIC. 4Y5 

tration of Mr. Holt, Mr. Cameron, and Mr. Stanton. Their passion- 
ate devotion to the strict letter of the law is very well known. We 
are, therefore, driven to one of the other departments to find even an 
imaginary case to illustrate our principle. The Secretary of the In- 
terior is authorized by act of Congress to issue certain bonds for the 
use of the Union Pacific Eailroad Company ; but he is commanded 
not to do so until a certain amount of work has been done uj)on the 
road. Suppose the Secretary of the Interior willfully or ignorantly 
issues the bonds jirematurely, and before the required amount of work 
has been done. He has exercised his power unlawfully. But would 
my learned friend advise the Government, whose counselor he is, to 
repudiate those bonds, and declare them void, titider the circum- 
stances? No, he would say, "^Impeach your officer, indict him, or 
sue him for the loss — do anything but cheat and ruin the innocent 
holder by jumping 'a circumstance' upon him of whicli he knew 
nothing until after he had parted with his money." 

Your honors, as well as the Attorney-General, will recollect the 
repudiation of the Mississippi bonds. The State had given to its 
officers the power which they exercised when they made the bonds, 
and pledged the faith and honor of the State for the payment of them. 
They appointed commissioners to negotiate them, and by those com- 
missioners they were actually negotiated. But they violated certain 
laws which they ought to have observed, and consequently the State 
did not receive the consideration which had been contemplated and 
required. The State repudiated them, and attempted to justify her- 
self ''under the circumstances.'^ I defy the Attorney-General to show 
any difference, in principle, between that repudiation and this. It is 
the same precisely. No doubt, he has read the message of Governor 
McNutt, and he must be conscious that any argument which he is 
able to make for the United States in this case is a mere reproduction 
of the arguments set forth in that message to vindicate the Mississippi 
fraud. And he must know that we are standing upon the very ground 
which the whole world took when the thunders of its condemnation 
blasted the character of that State forever, and left it to stand through 
all time a scorched and blackened monument of shame. The judicial 
authorities of Mississippi herself — the Supreme Court of that State, 
whose venerable chief-justice is now seated in your presence — decided 
that this attempt to get rid of the bonds by pleading "circumstances " 
was a mere swindle. But Governor McNutt had one signal advan- 
tage over our learned opponents in this case. Some of the holders of 
the Mississijipi bonds were Jews, and the Governor took high religious 
grounds against them. He insisted that no sympathy was due them, 
even if they were betrayed and plundered, because they had the blood 
of Judas and of Shylock in their veins. On theological, if not on 
legal grounds, he had them tight enough. But for aught that appears 
31 



476 FORENSIC. 

in this case, Mr. Peirce, and Grovernor Morgan, and the sempstresses, 
and the widows, and the washerwomen, and the little boys who deposit 
their half-dimes in the Dover Savings Bank, may be as good Christians 
as those gentlemen in the "War Department who are trying to cheat 
them out of their earnings. 

But we have a decision of this court perfectly decisive. The 
United States vs. The Bank of Metropolis is this case in every point 
and circumstance. The form of the paper there was the same as this ; 
the relation of the drawer to the Government was the same ; the power 
and position of the officer who accepted the bill was the same ; and 
every circumstance alleged in this case, whether truly or falsely, was 
actually present there. Porter was a contractor ; he drew upon the 
Post-Office Department, which had the supervision of his accounts ; 
his bill was accepted to accommodate him and enable him to perform 
his contract, though at the date of the acceptance nothing was due 
him. What is worse, the earnings under his contract did not cover 
the bill while it was running. This court held the paper to be a bill 
of exchange ; that the United States became parties to it by the ac- 
ceptance, and were liable, like any other acceptor, and that, if dis- 
counted in good faith, they were bound to pay it to the holder at ma- 
turity, without regard to the state of the drawer's accounts. 

There is another case also directly in point. The United States 
vs. Eeeside, determined in the Circuit Court, but not reported except 
in a Congressional document. In 1835 Mr. Barry, the Postmaster- 
General, determined to have more money for his department than 
Congress was willing to appropriate. To make a raise he resorted to 
a system of "kite-flying" with General Reeside, who was one of his 
principal contractors. At his request, Reeside drew a long series of 
bills, precisely in the form of these bills now before you, which Mr. 
Barry accepted and put into the hands of his agents, who took them 
to Philadelphia and New York, where they were sold for whatever 
they would fetch. The whole transaction was fictitious. The paper 
was got up for the accommodation of the department. It was the 
exercise of a power which belonged to the Postmaster-General as the 
head of a department, but it was, no doubt, a flagrant abuse of his 
authority. When it was discovered, Mr. Barry was driven from office 
and fled to Kentucky, with the wrath of the whole population burning 
after him. Mr. Kendall became his successor. He repudiated the 
bills, not because there was no power to accept them (for he himself 
did the same thing), but because, in his opinion, they ought not to 
have been accepted under the circumstances. He stated an account 
between the United States and Reeside, and brought him in debt 
132,000. On this balance a suit was brought in the Circuit Court of 
the United States at Philadelphia, where it was tried before Judge 
Baldwin in 1841. In the mean time Reeside had been compelled, as 



FORENSIC. 47T 

the drawer and indorser of the bills, to take up a large number of 
them, and he had them in his hands at the time of trial. He pro- 
duced them as offsets, and they were allowed, not only to an extent 
that covered the claim against him, but the jury found a verdict in 
his favor for $188,000, which was afterward paid under an act of Con- 
gress. Judge Baldwin instructed the jury that these were bills of ex- 
change, and, being accepted by the head of the department which had 
the supervision of the drawer's account, they were binding upon the 
United States ; that the authority given to the heads of the several 
departments ought always to be exercised for the public good, but if 
it was perverted so as to be injurious to the United States, they must 
look to their officer for redress ; they could not indemnify themselves 
by making reprisals upon other parties who had trusted their officers 
only to the extent that the United States themselves had proclaimed 
to the world that they might be trusted. This must be the rule. If 
it be not, then this Government is a mere machine to swindle the peo- 
ple, and all its officers, without going outside of their authority, may 
exercise it so as to commit a fraud of which the lowest confidence- 
man at a mock auction would be ashamed. 

But, while I contend for this rule, I do not admit that there was 
anything wrong in the exercise of Mr. Floyd's authority. He violated 
no law ; he disregarded no duty which he owed to the Government. 
They say that the acceptance of these bills was in conflict with the 
acts of 1823, IS-IG, and 1853. The slightest glance at these acts will 
thoroughly satisfy you that this whole transaction goes perfectly clear 
of all collision with these statutes, or any of them. 

It is not pretended that the acceptances were given for any corrupt 
reason, or that there was any fraudulent collusion between him and 
the drawer to make the United States pay more money than they 
ought. The Court of Claims, indeed, has paraded in its finding the 
misconduct of Russell and Bailey concerning certain bonds held in 
trust for the Indians ; but that has no connection whatever with these 
acceptances, with the War Department, or with Floyd, still less with 
the claimants. It took place long after the present holders of the bills 
had paid for them a full price in good faith. If the counsel of the 
United States had undertaken to make a special answer to our petition, 
setting forth their whole defense circumstantially, and this affair be- 
tween Bailey and Russell had been inserted in such an answer, there 
is no court on earth, having the remotest idea of its duty, that would 
not instantly have stricken it out as a mere piece of impertinent scan- 
dal. But the judges of the Court of Claims were so eager to defeat the 
rights of the claimants, by throwing odium upon the case, that they 
reached out over the case and dragged this business in by the head and 
shoulders. If they thought that by such means they could commend 
their decree to your favor, or increase the chances of its affirmance. 



478 FORENSIC. 

they must have put an exceedingly low estimate upon your under- 
standing. 

Thus far I have rather assumed the existence of the power. "We 
were bound to satisfy you, not only that it does exist, but that this 
act falls within its limits. For we claim no unlimited authority over 
the purse or the sword of the nation for any officer of this Govern- 
ment. "VVe deny utterly the extravagant doctrine imputed to us, that 
any head of any department may accept any bill drawn by anybody 
for any amount, and bind the United States to the payment of it. 
What, then, is the limitation ? I do not undertake to define the out- 
side boundaries. It is not necessary that I should. But I think I 
can draw what the land-surveyors would call the interior lines. I do 
it thus : Whenever any subordinate officer, agent, or contractor has 
a running account with the United States, he may draw a bill upon 
that department of the Government which has the administrative 
supervision of his accounts, and when such a bill is presented to the 
head of that department it becomes his duty to determine whether it 
shall be accepted or refused, and his decision is binding. The power 
to supervise the accounts, to determine what shall be charged against 
them, and what not, and to pay what is found due upon them, implies 
and includes within it the right to accept a bill drawn against that 
account. To this extent the power is established by executive prac- 
tice, by legislative sanction, and by judicial decision. Narrower limits 
than that you can not assign to it without denying altogether the ex- 
istence of the power. 

It has been denied, and that denial is based upon the fact that no 
act of Congress, expressly and in so many words, gives it to the head 
of any of the departments. But it is given in a score of statutes, by 
implication as clear as any words can make it. Where a power is given 
or a duty enjoined upon any public officer, without prescribing the 
mode of its execution, the choice of means is left to the officer himself. 
Certainly it can not be said that he usurps a power when he uses only 
those means which are reasonably proper to accomplish the end of the 
law. This, of course, will not be denied. Are there no functions as- 
signed to the heads of the departments which make the use of negotia- 
ble paper necessary to carry them into effect ? Let us see. 

The chief officers of the departments are the direct and immediate 
representatives of the supreme Executive Magistrate. What he does 
he does by their agency, and what they do is deemed and taken to be 
done by him. All of them have more or less to do with the fiscal 
affairs of the nation. All of them are engaged, directly or indirectly, 
in the collection and disbursement of the public revenue, which now 
amounts to $500,000,000 per annum. Their financial operations ex- 
tend to every part of the habitable globe. There is no commercial 
port or political metropolis in the world where they have not impor- 



FORENSIC. 479 

tant pecuniary interests of the United States to take care of. Tliey 
are engaged all the time in adjusting balances and settling accounts of 
persons who live at very great distances from the center of their opera- 
tions. They buy and sell, and make all kinds of commodities, great 
and small, provinces and pumpkin-seeds. They bargain with all grades 
and ranks of persons, at home and abroad, from the Autocrat of all 
the Eussias down to the menial that sweeps out the offices and shakes 
the carpets. They perform all the functions of merchants, manufact- 
urers, and bankers, and carry on all other kinds of business that can 
be done by money. And this they do, not occasionally and in a small 
way, but constantly, and on a scale of magnificent grandeur. How is 
all this multifarious business to be accomplished ? A method of doing 
it by bills of exchange was invented by the Jews of Lombardy in the 
fourteenth century, which, when tried, was found to be so safe, con- 
venient, easy, and rapid that it was immediately adopted, not only by 
all the governments of the civilized Avorld, but by all j)rivate persons 
who had considerable sums of money to handle. It was ascertained 
that a given sum, lying perfectly quiet in the vaults of a bank, or the 
coffers of a public treasury, would do twenty times as mucli business 
as could be done with the same amount in the same time on the old 
system of toting it about from place to place, and putting it into the 
manual possession of every one who acquired a right to it. It avoided 
the dangers as well as the delays of the old system. The commerce 
of the world, which had previously toiled along slowly, through the 
perils of the sea and the perils of the land, was set to flying high above 
all obstacles and all impediments, and the wings it mounted upon were 
made of these little slips of paper. If that invention had been pat- 
ented, so that the United States could not use it without paying for 
it, they could afford to give twenty-five per cent of their income for 
the privilege rather than go back to the cumbrous system of the Mid- 
dle Ages, and encounter all the risks and expense which that would 
produce. But they tell us, on the other side, that the officers of this 
Government, in conducting the public business, shall not use the 
means which everybody else uses in all similar business. This is not less 
absurd than it would be to say that, when the War Department is re- 
quired by law to move troops, provisions, and military stores from one 
part of the country to another, over a route where railroads and steam- 
boats have superseded all other modes of conveyance, railroads and 
steamboats shall not be used, because there is no act of Congress which 
expressly authorizes it. 

Nothing like this ever entered into the minds of the great men who 
organized this Government and settled its practice. In the golden age 
of the Republic, when its departments were under the control of men 
who studiously abstained from the use of any power which was in the 
least doubtful, this authority was taken and used without a suspicion 



480 FORENSIC. 

that they were guilty of usurpation. All the predecessors of my learned 
friend, in the oJBfice of Attorney-General, have taken it as a postulate, 
reasoning from it and not to it. Congress stood by for eighty years 
and saw it exercised — gave it not only the sanction implied by their 
silence, but many times they indorsed it with their express approval, 
by making specific appropriations for the payment of debts which had 
been contracted in no other way, and of which there was no other 
proof. 

But, over all and above all, this court expressly, positively, and di- 
rectly adjudicated not only that such a power existed, but that it was 
practiced daily and inevitably, and that the United States had a deeper 
interest than anybody else in maintaining the rules which gave credit 
and currency to that kind of paper. I take it for granted that you 
will look that decision directly in the face, and meet it with the can- 
dor and the fairness which always has, which does now, and which 
always will, characterize the judicial mind of a great nation like this. 
It is utterly impossible to deduce from it any other rule than this : 
That where a co7itractor under the United States draivs a hill upon 
that department of the Government which has the administrative super- 
vision of his accounts, and the bill is accepted hy the head of the de- 
partment, the United States hecome thereby hound to pay it, at matu- 
rity, just as a private party would he hound to pay a hill accepted hy 
himself or hy his authorized agent. 

There are only two ways in which you can treat that case. One is 
to make it decisive of the point under consideration. The other is to 
overthrow it and sweep it out of your path, because it stands in the 
way of your inclination to repudiate this debt. The latter course is 
one which you will be prevented from taking by certain considerations 
which lie outside of this cause and outside of this subject, vast as it is. 
They concern the stability of the law itself, and the confidence which 
is and ought to be reposed in this court as the organ and expounder 
of the law. If you pay no respect to the decisions of your predeces- 
sors, those who come after you will pay no respect to yours, and then 
we shall have no law, or as good as none, for it will change every time 
it passes through the courts — depending upon the temper and the 
caj)rice of the judges. Those sacred rules of property which ought to 
be as firm as the foundations of the everlasting hills, will become as 
unstable as water. The law will be anything and everything, and 
nothing at all, according to the revolution and turn of time — i\\QJus 
ragum aut iyiconditum, which all men allow to be the most intolerable 
scourge that ever afilicted any people. That is what Jeremy Bentham 
calls "dog law," because the subject of it can never know what it is, 
until he feels the club of his master upon his head to punish him for 
some unconscious violation of it. 

If you could believe that the case I refer to was decided errone- 



FORENSIC. 481 

ouslj— that the case was wrong upon original principles— yet, when 
you reflect that it was founded upon a daily and inevitable practice 
then fifty years old ; that it has been followed by a similar practice 
ever since ; that the principle of it has become woven into the public 
and private business of the country ; that rights have grown up under 
it, which it would be utterly unjust and cruel to extirpate now, you 
would sustain it, if there was no other way, upon the principle that 
communis error facit jtis. For error itself ceases to be erroneous, 
after it has been practiced for a long time witli the sanction of the 
public authorities, and all the people have learned to adjust their busi- 
ness to it. 

If you reverse that judgment, what are you to say about it ? 
You tell the world that it has stood for twenty-five years like an open 
man-trap in the public highway, baited with Government paper ; at 
last it has become full of innocent victims against whom the War De- 
partment happens to have a grudge, and it may be sprung upon them 
to their ruin and destruction. The decision that you substitute in the 
place of it will be another trap, baited in the same way, until some 
other obnoxious individual happens to put his foot into it, and he will 
suffer as these men, women, and children are expected to suffer now. 
This disregard of precedent will, of course, extend to other cases 
upon other subjects, and tlius your whole system of jurisprudence, 
instead of being what it ought to be — a protection to the rights of 
men — will be a mere delusion and a snare in which nobody can have 
any confidence. 

Every judge who sat upon the bench when that decision was made 
has gone to his reward. They are all dead. Has the law, as they 
settled it, died with them ? And are the decisions that you make to 
be buried in your graves also ? 

I do not say this because I have allowed myself for one moment to 
believe that you are capable of pronouncing a judgment which will 
punish these claimants by defrauding them for the sin of relying upon 
a solemn decision of your predecessors. This court has gone further 
than any court in the world in support of the principle of stare decisis 
as the great sheet-anchor of the law. You have held that, where a 
contract has been made, which was valid according to the law as ex- 
pounded by the judicial authorities at the time it was made, it can 
not be set aside, or its obligations impaired, by any subsequent change 
of the judicial mind. We demand the protection of that principle, 
and we expect to receive it. 

I do not deny that the United States may, like an individual ac- 
ceptor, make an equitable defense, unless, indeed, the bill has passed 
beyond the reach of equity, by going into the hands of a bona-fide 
holder who has paid for it. This brings me to the question of notice, 
of which I propose to say very little. 



482 FORENSIC, 

It is admitted that Mr. Morgan and the two banks are holders in 
good faith ; but it is asserted that Mr. Peirce had notice. The alleged 
notice consisted in a declaration made to him by Mr. Floyd, in Avhich 
he assured him that he had accepted these bills, that he had authority 
to do so, that there was consideration for them, and that Mr. Peirce 
would be perfectly safe in taking them. He proceeded to show 
that the authority had been exercised prudently and cautiously, the 
acceptance being given only for about forty or fifty per cent of the 
money which would be due to the drawers when they delivered the 
goods then actually in transitu. He concluded by pronouncing these 
the best public securities extant, because the money to pay them was 
already appropriated by Congress. Mr. Peirce, understanding this 
Just as any other sensible man must have understood it, took the 
bills, paying for them an outside j)rice. He never dreamed that 'any 
tribunal in the world, judicial or ^'wasi-judicial, would require him to 
understand the words that he had heard in a sense directly opposite to 
their natural meaning. But the solemn assurance that they were all 
rigid was ruled by the court below to be notice that they were all 
turong ! 

We have no right to anticipate that the counsel for the Govern- 
ment will attempt to sustain a ruling like this. But the effect of it 
practically was, not only to permit, but to invite, the War Department 
to exhibit the state of the drawers' accounts. 

If the earnings of the drawers upon their contract, while the bills 
were running to maturity, were sufficient to cover the amount of the 
acceptances, payment to the holders can not be honestly refused. To 
this part of the case I would ask your careful attention, because here 
you must mark out the moral ground which these parties respectively 
occupy. AVhere the holder and the acceptor of a bill are placed in 
such a situation that one or the other must lose the sum in controversy, 
neither of them can be blamed for making a fair struggle to throw the 
loss upon the other. But where the acceptor has tlie money of the 
drawer in his hands, or security for it, and attempts to shuffle out of 
his liability by concealing the truth, such a man is guilty of loathsome 
dishonesty. 

I need not repeat what I have said already, that the acceptance 
does ipso facto raise a presumption that the acceptor had funds appli- 
cable to the payment of the bill, and which, in conscience and in honor, 
he ought to apply to it. Have the United States repelled that pre- 
sumption ? No ! they have strengthened it in every possible way. 
They have piled up the evidence against themselves until they have 
made it as strong and as solid as a wall of adamant. 

In the first place, they show that the drawers were contractors, and 
they do not couple that fact with any evidence showing or tending to 
show that the contract was ever violated in any particular. No requi- 



FORENSIC. 483 

sition was ever made upon Russell, Majors, and Waddell which was not 
fully complied with. The army in Utah did not perish for lack of 
supplies, and not an ounce of provisions, not a shred of clothing, was 
ever furnished by anybody but these contractors. There was a run- 
ning account between them and the United States, of which the War 
Department had supervision, and there is no scintilla of proof that 
the account was overdrawn, as it stood when these bills became due. 
Moreover, they prove that Congress recognized the existence of this 
very debt by making a specific appropriation for its payment. Of the 
six hundred and seventy-three thousand dollars placed at the disposal 
of the War Department for that purpose in July, 1860, it does not 
appear that one cent was ever applied as it ought to have been. There 
it was then, and there it is now, unless it has been unlawfully and 
dishonestly perverted to some other purpose. 

If these drawers were in debt to the United States, after being 
charged with the accepted bills, it was plainly and obviously the duty 
of the War Department to have an account stated, and take legal 
measures to collect the balance. But no settlement was ever made, no 
claim against them was ever asserted, no suit was ever brought. If 
the successors of Floyd knew Eussell, Majors, and Waddell to be not 
only defaulters, but fraudulent contractors, who had falsely got their 
overdrafts accepted, then the omission to vindicate the rights of the 
Government was a gross and shameful crime, compared to which the 
worst thing charged against Floyd was an act of white-robed inno- 
cence. But you are not asked to make that imputation. They did 
not connive with defaulters to shelter them from justice, and defraud 
the United States. They understood very well that the United States 
had no claim against them, and could have none in any event. But 
they had made up their minds to cheat the holders of this paper out 
of their just rights, and therefore they determined to smother uj) the 
truth. 

If the refusal to settle an account could be explained in a way 
which would make it at once consistent with fidelity to the Govern- 
ment and justice to the claimants, there is another thing which admits 
of no possible excuse. Why did they not produce their books and 
records, after the court below declared that the case was open to all 
equities ? They surely knew that there could be no equity in their 
favor as long as they failed to prove the want of funds in their hands. 
But they obstinately refused to produce the requisitions, the vouchers, 
the credits, or the charges. They withheld them in wanton disregard 
of what they owed to the administration of justice. The presumption 
iri odium spoliatoris applies to an officer as it does to anybody else ; at 
all events, no party, public or private, can withhold material evidence, 
which is in his own exclusive possession, and afterward be permitted 
to say that it would have made in his favor if he had produced it. 



484 FORENSIC. 

Do not allow yourselves to be imposed upon by that paragraph in 
the second finding which says that there was due to the drawers, at 
each of the several times when the bills of Morgan and the two banks 
were accepted, $17,884"84:, and the same sum to a fraction on the 18th 
of May, 1860, nearly a year afterward. If this proves anything, it 
shows that the contractors always drew for exactly $17,884-84 less 
than their earnings. The court did not say how this singular fact 
occurred, nor why the balance was at all times kept back to that 
specific point by a party whose credits were accumulating at the rate 
of hundreds of thousands every month. If it had said that the drafts 
were not charged against the account, and still the balance in their 
favor was only 117,884 '84, we would have been bound to take for true 
what we could not believe, namely, that nothing was earned under the 
contract during all that time. But the court could not say that, for 
the judges knew it was not only unsupported by proof, but contrary 
to all the known facts of the case, and opposed to the direct evidence 
which came from the mouth of a witness called by the Government 
itself. 

There is our case. Bills of exchange drawn by contractors against 
an account with the United States, and accepted by the head of the 
proper department, in pursuance of legal authority, and a i^ractice as 
old as the Government itself, passed to the claimants, who took them 
in perfect good faith at the highest rates, and payment refused, not 
because the drawers had no funds in the hands of the acceptors, but 
because the War Department took a fancy that it would be pleasant 
and profitable, and perhaps popular, to withhold from the claimants 
the money which was due to them by every principle of Justice and 
law. Their defense is that the claimants ought to suffer because the 
officer was guilty of some pretended irregularity in the exercise of his 
power to bind the United States. And they think they can cover the 
shameful nakedness of this fraud with such a paltry fig-leaf as that ! 

We have no objection that you shall look to the public interest, if 
you will take a broad view of it. If the nation owed no debt except 
this, and expected never to contract another, then she would have no 
practical use for her character, and all that could be filched from these 
claimants would be so much clear gain. But we are not in that situa- 
tion. We owe some thousands of millions, and our securities are sell- 
ing in the markets of the world for about seventy-five cents on the 
dollar. That they sell for that much is evidence that some persons 
believe in our honesty ; that our six-per-cents do not sell for one hun- 
dred and twenty-five or thirty, while English three-per-cents bring 
ninety-five, proves that in some quarters we are seriously doubted. We 
have some credit to gain as well as some to lose. If you could do any- 
thing which would at once inspire universal faith in the commercial 
integrity of this nation for the present and the future, you would add a 



FORENSIC. 485 

thousand millions to the available wealth of the country, and give in- 
calculable strength to the Government at home and abroad. If you 
would at once destroy what confidence does exist, you would bring 
calamities upon us, to which war, pestilence, and famine would be 
visitations of mercy. 

It is a mistake, which you certainly are in no danger of making, 
to suppose that this thing, which we call the national honor, is merely 
set w]} to glitter in the eyes of the world ; to inflame the jiride of our 
own people, and excite the admiration of otliers. It has a practical 
value which might be counted in dollars and cents, if the sum were 
not too large for human arithmetic. The nation that preserves it un- 
tarnished can, without money, do all that others can do with it. She 
need not hoard her treasures. When the emergency requires it, she 
has but to say the word, and capitalists come from all the ends of the 
earth to pour out uncounted millions at her feet. Junius said : "Pri- 
vate credit is wealtli, public honor is security ; like the feather on the 
wing of your eagle, it not only decorates the royal bird, but it sustains 
him in his flight ; strip him of his plumage, and you fix him to the 
earth." 

The advantage of simple good faith is strikingly shown in the his- 
tory of British India. A handful of adventurers, organized as a trad- 
ing company, from a little island in the Northern Ocean, twenty thou- 
sand miles away, got a foothold on the shore, and commenced a strug- 
gle, at first for existence, and then for supremacy. Their enemies 
were the native princes, who were rich in everything except a good 
character. But nobody would lend them a rupee, even on a promise 
of fifty per cent interest, because the chances were always more than 
even that some excuse for non-payment, like that which is here set uj), 
would be framed out of the "circumstances of the case." Every man 
that had money buried it deep in the earth, or walled it up in the 
solid masonry of his house, to j)revent his government from getting it 
by fraud or force. But it was soon ascertained that the English were 
in the habit of keeping their contracts. When they made a promise, 
it was as certain to be performed as the sun was to rise and set at the 
appointed times. Immediately the coin was brought forth from its 
hiding-places and offered to the English company at any rate of usance 
they might be willing to give, three or four per cent being the utmost 
that was asked. This gave the company the command of all the 
wealth in the country, and put in its hands an irresistible power 
which, in the course of a few years, made them masters of all that 
opulent region, with a hundred and fifty millions of people. Macau- 
lay, who understood the subject thoroughly, declares these vast results 
to have been produced more by the mere fact that the company never, 
under any circumstances, denied its debts, or tarnished its commercial 
honor, than by all other causes put together. 



486 FORENSIC 

Any state, community, or nation may have such a character, if it 
chooses to deserve it by an honest compliance with all its obligations. 
But that is the sole condition upon which it can be got or kept. Mr. 
Webster said of Alexander Hamilton that 'Mie smote the rock of 
the national resources and an abundant stream of revenue gushed 
forth ; he touched the dead corpse of public credit and it sprang to 
its feet." How ? By what magic was a modern statesman able, even 
in a figurative sense, to reproduce the miracles of Moses and Elijah ? 
Simply by giving to tlie world a practical assurance that his Govern- 
ment was utterly incapable of descending to the meanness which 
would trifle with a legal contract, or deny the payment of an honest 
debt. Without that the fountain in the rock would have dried up in 
an hour ; without that the reanimated corpse would have sunk back 
again into the arms of death, as cold and as stiff as ever. Remember, 
it is not enough that you pay one favored class of your creditors — 
those who are favored to-day may be the victims of to-morrow. To 
make any of them sleep the sound sleep of men who feel secure in 
their rights, you must show that you are animated by that high sense 
of justice, which consecrates all legal obligations alike. 

I do not say that your decision in this case will immediately pro- 
duce a total collapse in your whole financial system. Its effect will 
not be appreciated at first. But when it comes to be considered, and 
understood, and adopted as a precedent in other cases, it can not but 
have a most pernicious effect on the public credit. It is a stab at the 
national honor. Like Mercutio's wound, it is not as wide as a church- 
door nor as deep as a well, but it will do your business for you in the 
course of time. A little leaven leaveneth the whole lump, and it can 
not be long before the principle of such a decision will pervade the 
whole mass of the public indebtedness. Nemo rcpente fuit turpissi- 
mus ; no man ever became thoroughly wicked all at once, and no 
nation ever went down to the bottomless pit of repudiation at a single 
l)lnnge. The " desccns^is Averni'" is rather steep to be sure, and it 
gets steeper and steeper the farther you go ; but it is not quite per- 
pendicular. This is a start in that direction, and all the more dan- 
gerous because it may excite but little apprehension at first. If the 
whole people should be shocked by it, the recoil alone might save us 
from destruction. But those things which are most terrible in ma- 
turity are always least alarming in their infancy. A rat-hole in a 
Dutch dike is not a formidable affair at first ; it lets in very little 
water in comparison to the great ocean continually surging up against 
it ; but it washes wider and wider every hour, and, at last, a mighty 
tide goes pouring through it — enough to drown whole cities, and cover 
all the plains about them. Look well to your rat-holes, unless you 
are willing to be submerged ; beware how you suffer repudiation of a 
small debt if you wish the large ones to be secure. 



FORENSIC. 487 

You can readily imagine the impression sueli a case as this would 
make upon you if you would hear of it as occurring in a foreign coun- 
try. Suppose you would read in some authentic publication that the 
French Minister of War had made a large contract for supplies to the 
army iu Algiers. The contractor proceeds to perform his full duty, 
and draws upon the minister from time to time for his earnings. The 
minister accepts his bills cautiously, and always for less than fifty per 
cent of the money which will be due to the contractor when he de- 
livers the goods then at Marseilles, and ready to be shipped across the 
Mediterranean. These accepted bills are offered to a banker, who is 
willing to take them at their full value as first-class commercial paper ; 
but, in order to make assurance doubly sure, he calls on the minister 
and asks if they are safe. The minister affirms, and affirms truly, 
that he gave the acceptances in pursuance of law, and according to a 
practice which dates as far back as the time of the crusades, and sol- 
emnly declares that they will certainly be paid at maturity. The bills 
are taken, paid for in good faith, and kept until they are due. But, 
when payment is demanded, the holder finds the portfolio of the War 
Office in the hands of a new minister, who sullenly and silently refuses 
to pay. No reason is given. It does not appear that the contractor 
failed in his contract ; no assertion is made that his earnings did not 
equal the amount of his drafts. The minister refuses to settle his 
accounts, and thus acknowledges that the balance is in favor of the 
drawer. Payment seems to be refused for no reason except that the 
new minister can thereby curry favor with his master by throwing 
additional odium upon his fallen predecessor. The holder appeals to 
the other authorities, from whom he receives neither aid nor comfort. 
At length he invokes the Court of Cassation, the highest tribunal of 
justice in the Empire, and that court, after hearing the cause debated, 
holds that this unworthy trick, by which an honest and confiding 
man has been swindled out of his fortune, is perfectly consistent with 
French ideas of public morality ; and that whosoever shall deal with 
that government must expect precisely that kind of justice, and no 
other. After seeing this, would you believe much in the good faith 
of that nation ? If you had any of its securities, would not you feel 
like rolling them up and getting rid of them as soon as possible ? 

But I have supposed an impossible case. No such thing could 
occur with any European government. If it occurs here, we will 
stand alone, a fixed image for the scorn of the world to point her 
finger at. In France they have had six revolutions in eighty years — 
totally changing each time not only the rulers but the whole structure 
of their political system. No party, even in the white heat of its tri- 
umph, ever repudiated the debts of its predecessors. In the wildest 
frenzy of the first revolution — when the country was governed by the 
mere passions of the Jacobin Club — they dragged the king to the guil- 



488 FORENSIC. 

lotine and chopped his head off for making the debts — that was what 
Judge Baldwin would call ''looking to their officers" — but the con- 
tracts which he made in the name of the nation, while his legal 
authority lasted, were sacredly kept. When the Bourbons were re- 
stored, in 1815, they studiously ignored the very existence of ISIapo- 
leon ; they struck his name out of the records wherever they could, 
and substituted their own in its place ; they j)ulled down the monu- 
ments erected to honor him, and gave back the fruits of his victories 
to the nations from whom he had wrested them ; they treated his 
whole reign as one continued rebellion against their just authority : 
but they acknowledged the obligation of the debts he contracted, even 
to maintain his rebellion, because he was at the time de facto chief of 
the state. They knew how unsafe any other action would be, for 
their creditors would look forward, if they themselves did not, to the 
time when some new Napoleon would arise, who might treat their con- 
tracts as they would treat those of the first emperor. The public debt 
of France lies imbedded beneath six layers of revolutions, and that 
portion which lies the lowest is paid as faithfully as the contract that 
Avas made but yesterday. Are we to acknowledge that we can not get 
through the thin crust of prejudice created by one change of adminis- 
tration ? If yes, what is to become of our creditors when the great 
changes take place which probably await us in the future ? 

But you will wipe away the stain which this act of the War De- 
partment has cast upon the nation, and send her forward upon the 
clear, bright line of justice which stretches out straight before her. 
So will she have length of days in her right hand, and in her left hand 
riches and honor. 



PROVIDENCE KUBBER COMPANY vs. GOODYEAR'S 
EXECUTOR, ET AL. 

Mr. Black said he would confine himself entirely to what has justly 
been called the main case, and be as brief about that as he possibly 
could. 

At this stage of the discussion it is not necessary to make any 
prefatory statement of the facts, except to remind the court of the 
order and sequence in which they occurred. 

Charles Goodyear got his patent in 1844. In 1849 he surrendered 
it and took a re-issue. In 1858, when it was about to expire, he made 
application for an extension, and succeeded, as we allege, by a fraud. 
In 1859, or in the early part of 1860, he died. In December, 1860, 
his personal representatives again surrendered the patent, and this 
time they took out two patents, instead of the one which had covered 



FORENSIC. 489 

the invention before. It is for infringing these two patents that the 
appellants were sued. 

The defense which they set up in the Circuit Court was somewhat 
multifarious. That part of it which went most directly to the merits 
of the case may be stated in a breath : The plaintiffs bad no valid 
patent, and we had a license from the patentee for all acts that were 
charged against us in the bill as unlawful and wrong. The judge of 
the Circuit Court overruled these defenses, and all the otlicr defenses 
that we made. He declared that the plaintiffs had a patent which 
Avas good enough, and he ignored our license altogether. Tliereupon 
the court made a decree against us, which would have seemed harsh 
and excessive even if we had been infringers in bad faith upon a legal 
and honest patent. Its magnitude will be understood when I tell you 
one fact : In 1858, when Goodyear made application for the extension 
of his i^atent, he swore to the sum he had made from it up to that 
time. For using his invention, with half the force of one factory (not 
a large one) at Providence, during a period of two years, and then 
only at intervals few and far between, this decree makes the defend- 
ants pay more than twice as much as Goodyear swore he had been 
able to get for the use of that same invention by all the manufact- 
urers in the United States put together in the whole course of four- 
teen years. 

One of tlie decrees made by Lord Bacon, when he was Chancellor 
of England, was pronounced in the House of Lords to be a '* killing 
decree " ; and this is one of the same kind. If my learned friend (Mr. 
Stoughton) comes anywhere near the truth in the statement he has 
made about the defendants' circumstances, it not only broke up their 
business for the time, but it must, if executed, drive them out into 
uttermost ruin and bankruptcy. It is a killing decree. No wonder 
that they are here beseeching you *'to deliver them from the body of 
this death." They have faith enough to believe that you will save 
them alive, if you can do so consistently with your sense of justice 
and your love of law. 

On some of the points taken in the Circuit Court I will be entirely 
silent, but I will maintain, if I can, the five propositions which I am 
now about to enumerate. 

First. — Tlie extension of 1858 was procured by an actual fraud, 
and is therefore absolutely null and void. If that be true, the plaint- 
iffs have no patent now, and had none at any time since 1858, when 
their original patent expired. 

Secondly. — The two patents re-issued on the surrender of 1860 are 
not for two different inventions, nor for two separate and distinct 
parts of one invention, but for two halves of one single invention, 
which is an indivisible unit, not capable of being separated. The legal 
consequence is that both patents are void, or else the two are to be 



490 FORENSIC. 

treated as one. In the latter case the admitted defect in one of the 
patents is fatal to both of them. 

Tliirdly. — Both of those patents are void for another reason. In 
both of them the claim is broader than the invention, and in that one 
which was sustained by the court the over-claim is more palpable than 
in the other, which the court below adjudged, and which the counsel 
opposed to us now admit, to be without a pretense of validity. 

Fourthly. — We had a license, plain, unambiguous, and authentic, 
which gave us for a good consideration, by apt words and in proper 
form, the authority of the patentee himself to use his invention pre- 
cisely as we did use it, and to make the very goods which we are sued 
for making. 

Fifthly and lastly. — The Master in Chancery, to whom the court 
sent this case to make up an account against us, based his calculation 
of our profits on a rule for which we can find no jirecedent in the 
books, no analogy in the law, no foundation in any principle of 
natural justice. This report, I am satisfied, would, upon further dis- 
cussion and reflection, have been set aside by the court below ; but it 
was not done, and this court is bound now and here to do what ought 
to have been done by the Circuit Court then and there. 

If you agree with us on any one of the four first points, the plaint- 
iffs' case must go entirely by the board, and the bill be dismissed. If 
you concur with us only on the last one, the decree must be reversed, 
and another substituted in its place, very much less in amount. 

It is unfortunate for us that Mr. Justice Clifford decided this cause 
against us on the circuit. Of course, if, upon reconsideration, he 
finds that he fell into error, he will hasten to correct it before it pro- 
duces irreparable mischief. But it is hard upon us to have the weight 
of his judgment thrown into the scale against us ; for we must admit 
that, whenever our argument comes in conflict with his opinion, the 
presumption is that he is right and we are wrong, unless we show the 
contrary by clear reasoning or by very decisive authority. 

I. So far as the law of our first point is concerned. Judge Clifford 
is with us, as I understand him. 

Mr. Justice Clifford. — You mean probably about the question on 
the re-issue. 

Mr. Black. — No. I refer to the effect of the fraud by which the 
extension of 1860 was procured. The judge conceded as matter of law 
that we had a right to defend ourselves against an extended patent, 
void for the kind of corruption imputed to this one, if we could do so 
by satisfactory proof. It may not be expressed with his usual felicity 
of diction, or with all the terseness which is common to his opinions, 
but it admits of no other interpretation. 

Our proposition, stated in general terms, is, that any grant, 
whether of land, money, or privileges, made by the Government through 



FORENSIC. 491 

a judicial or executive agent, is wholly void if jorocured by trick, im- 
posture, or any species of actual fraud. Where the object is to set 
aside and cancel the grant, the fraud must be proved in a direct pro- 
ceeding, instituted for that very purpose, by the Government itself ; 
but when the question of its validity arises in a suit between private 
parties, it must be determined like any other question so far, and so 
far only, as they have an interest in it. The party whose rights would 
otherwise be injuriously affected by it may show the truth in self-de- 
fense. 

Our learned opponents have surprised me by squarely asserting the 
doctrine that a private party must submit to be ruined by a void and 
fraudulent grant, unless the Government chooses to apply for its can- 
cellation. To back this they produce but a single case. Passing over 
the simple elementary principles found in the text-books, and ignoring 
the hundreds of cases in which their theory is contradicted, they 
adroitly call your attention to Seabury vs. Field (19 How., 323), 
which proves nothing on the subject. The head-note of the reporter, 
read by my brother Evarts, gives no idea of the decision, which was 
this : A and B both had grants for the same land ; A had the elder 
and was in actual possession ; B's, besides being junior, was worthless 
for want of registry. Nevertheless B brought ejectment, and the 
court held that he could not be permitted to make out his case by 
showing the defendant's patent to be fraudulent. Is that a denial of 
the principle we contend for ? Would you infer from this that a de- 
fendant in possession under a title prima facie good might not prove 
the patent on which the plaititiff sued him to be void for corruption ? 

A patent, or the extension of a patent, is wholly void if obtained 
by fraud. This is not denied. It is, therefore, a mere nullity ; it has 
no legal existence ; it is inoperative for any purpose. Would Mr. 
Evarts or Mr. Stoughton advise a client to bring suit for the infringe- 
ment of a void patent ? In all the vast variety of their professional 
achievements have they ever recovered on a void instrument of any 
kind ? Do they suspect that any court within the limit of Christian 
civilization would permit such a recovery ? If the defendant in a case 
like this shows that the plaintiff's patent is void, because it was not 
issued by the proper officer, or because the claim is broader than the 
invention, or because the discovery of the patentee had been antici- 
pated by another, nobody would think of saying that the suit could 
be sustained. My learned friends, all three of them, would admit una 
voce that the patent, being void for any of these reasons, the cause is 
a failure. They would admit that any kind of invalidity might be 
shown, except that which comes from the willful fraud of the party 
who seeks to gain by it. Does the law maintain this strange anomaly 
out of pure tenderness for the interests of rascaldom ? Does a court 
of equity punish an honest patentee for a mere blunder, and then 
32 



492 FORENSIC. 

break all the rules of its logic for the sake of giving protection to 
knavery and corruption ? I certainly would have expected my friends 
on the other side to admit that their claim is defeated by any proof 
which shows their patent to be void, and, above all, if it be void for 
the dishonesty by which it was procured. 

There is no species of fraud upon which the mind of a judge looks 
with so much abhorrence as a false and deceptive collusion between 
parties who profess to be managing a cause on opposite sides. It is a 
scandalous shame upon the laAV. It poisons the stream of justice at 
its very fountain. No judgment, sentence, or decree of any tribunal, 
judicial or quasi-judicial, can stand if proved to be obtained in that 
way. Not only will a court of equity give relief to a third person who 
is injured by it, but the lowest court in the country may disregard it 
when it comes into question collaterally. 

We insist upon it that the judge of the Circuit Court was right in 
holding that we might make this defense. He went on, however, to 
say that we could not avail ourselves of it unless we proved it satisfac- 
torily. To this also we assent most cordially. You can not presume 
fraud in such a case ; it must be proved ; and proof that is not satis- 
factory is no proof at all. But if the fraudulent collusion is not irre- 
sistibly made out in this case, there is an end of all reliance on human 
evidence. Let us see. 

I take it for granted that nobody on the bench, or at the bar, has 
meant to cast the slightest imputation on the veracity of the witnesses 
who testify on this subject. They are among the most eminent coun- 
selors in this country— Mr. Jenckes, Mr. Brady, Mr. Blatchford, Mr. 
Judson, and Mr. Clarence Seward. Two of these gentlemen are dead, 
one of them has been translated to the bench ; the other two still re- 
main at the bar, enjoying now, as they have ever enjoyed, the entire 
confidence of all the courts in which they practice, including this 
court. They could not have made any mistake, for their statements 
relate to a proceeding which they themselves conducted from begin- 
ning to end ; all which they saw, and a large part of which they were. 
Some circumstantial variety there may be, but not the least conflict in 
their testimony upon any material point. Nor are they contradicted 
by anybody else. On the contrary, all the known facts in the case cor- 
roborate them in every word. 

Now, what do they say ? The unvarnished account which I shall 
give of their testimony is fully verified by the record. The counsel of 
the Goodyear patentees was applied to and his advice sought concern- 
ing this application. After conferring with others, he and they came 
to the deliberate conclusion that the application could not go through 
the Patent-Office upon the facts as they knew them to be. In other 
words, there was not even a forlorn chance of success, if anybody 
acquainted with the subject would make opposition to it in good faith. 



FORENSIC. 493 

Opposition was apprehended from Horace Day, who had always been 
the inveterate enemy of Goodyear, and of all the Goodyear party. It 
was not to be expected that he would pretermit such an opportunity 
as this "to feed fat that ancient grudge he bore them." He was not 
only hostile to the parties, but he had a deep interest in preventing 
the extension, and he had already employed a large corps of able coun- 
selors to take charge of that interest. He also had within his reach, 
and within his knowledge, the facts which would make his opposition 
irresistible and overwhelming. There was nothing for it but to buy 
Day, and he was bought. They had raised a fund of nearly $70,000 — 
the licensees being regularly organized for the purpose of prosecuting 
this application — and had put that fund into the hands of a treasurer, 
whose business was to pay it out wherever it could be made most 
effective. I do not say that any portion of the fund was paid into the 
hands of Day, for the record does not show that it was ; but it is per- 
fectly clear that a large portion of it was paid to his counsel, and with 
his consent. 

The consideration which brought Day into the service was an 
agreement with him that if he would aid them, in the way thought to 
be most effective at the time (I use the language of Mr. Brady), in 
getting an extension, which he and they knew they had no right to, 
they would divide with him the fruits of their joint iniquity. That 
is, after this nefarious extension should be obtained in this criminal 
way, they would hunt in couples, and prey on the public in partner- 
ship. In pursuance of that corrupt arrangement. Day sent his whole 
effective force to the side of the applicants. All the powers that he 
had arrayed in the field against the extension struck their tents and 
marched over in a body to the other camp. He sent them there, and 
after they were there they continued to act under his orders. But he 
himself kept his flag flying. He continued ostensibly in his old posi- 
tion, and loudly vaunted his determination to hold it to the last ex- 
tremity ; while his lieutenants were training their guns upon it and 
blazing away with all their miglit. 

To speak without metaphor : Day came before the commissioner, 
denounced the application as most nefarious, and claimed the right, 
which he had as an American citizen interested in the subject-matter, 
to appear there as a party. This was conceded, and his name was 
placed on record as the party opposing the extension, for the protec- 
tion of his own rights and the rights of all persons who were situated 
as he was. Occupying that attitude, he treacherously gave away the 
cause which he pretended to support. He was legally entitled to 
notice of every step that might be taken in the proceeding. He had 
a right to cross-examine the witnesses for the extension, and he exer- 
cised it only in the interests of the applicants. He took voluminous 
depositions himself, but he took precious good care to include in them 



494 FORENSIC. 

none of the facts which would injure the chances of the other side. 
Upon the commissioner they had all the imposing effect that was due 
to opposition evidence. He had a right to suppose that what was not 
proved by a vigilant and malicious enemy like Day did not exist ; and 
accordingly that constituted a very large element in the judgment 
which he finally made up. 

Not content with that, Mr. Day filed an affidavit of his own, 
which he swore to, filled with the most extravagant accusations 
against Goodyear and his friends, all of which appeared to the com- 
missioner, in the light of the evidence before him, to be merely false. 
The affidavit may have been true, or he may have thought it was 
true ; but it is certain that he did not intend it to be believed by the 
commissioner, for at that very time he was engaged in aiding the 
counsel on the other side to make up an argument, out of materials 
which he himself furnished, to prove that every line and letter of his 
own affidavit was false. 

The commissioner naturally and necessarily looked upon Day as a 
base persecutor, and on Goodyear as a much-i'njured and very ill-used 
gentleman. They had calculated precisely the effect of this upon Mr. 
Holt's mind. They knew very well that in proportion as his wrath 
would be roused against Day, in that proportion his affections would 
warm to Goodyear. He decided the case in a perfect tumult of feel- 
ing, which poured itself forth in a stream of blazing rhetoric, filled 
with maledictions on Day, but coupled with such a eulogy on Good- 
year as scarcely any benefactor of the human race has ever deserved. 
Mirabeau's funeral oration on Dr. Franklin before the French Acade- 
my was tame in comparison. I am not aware that any one has ever 
pronounced so lofty a panegyric on the genius and virtue of Newton, 
La Place, or Kepler. 

All this was brought about by trick, imposture, deception. Mr. 
Holt never saw the case in any light approaching the truth. He 
understood none of the relations which existed between any of the 
parties. He was compelled to put a false construction upon all their 
conduct, and all their words, and all their evidence. From beginning 
to end of the proceeding he was surrounded with all the machinery of 
false pretenses, and at every step he was misled by some false token. 

And now you are told by Mr. Evarts that we have not proved this 
fraud to be the cause of the decision, since Mr. Holt might peradvent- 
ure have decided the same way anyhow on the true merits of the 
case. Are we bound to prove not only the fraud and its connection 
with the grant, but also that one Avould not have existed without the 
other ? No ; the rule undoubtedly is that the slightest contact of 
fraud with any grant taints it through and through. It is either alto- 
gether pure or else it is wholly void. But this is not merely a touch 
— it is all fraudulent ; and the covin is mixed with every part of it. 



FORENSIC. 495 

You do not trace the deception here as you generally do in other 
cases, like a dirty thread running through a clean tissue into which 
it has been woven, but the whole web, warj) and woof, is made of 
corrupt and rotten material. 

But you may, if you choose, imagine what Mr. Holt would have 
done if he had known what you know. Suppose he had suddenly 
caught these people with their masks off, and discovered that all this 
persecution which made him so indignant was paid for by the Good- 
year party, and furnished on contract, like an article of merchandise ; 
that they were acting in concert, and not in hostility at all ; that 
when they stood before him glaring at one another with simulated 
ferocity they were only playing the part set down for them ; that he 
was sitting there, like a country boy at a theatre, and made to believe 
that the sham battle was a real thing ; that all the parties were banded 
and confederated together to play upon him and *' fool him up to the 
top of his bent." What would he have done ? Why, the parties 
themselves (or the counsel rather) have told you on their oaths that 
Mr. Holt, being an honorable man, would have instantly decided 
against the extension, if he had discovered Day's collusion with the 
applicants. You can not doubt — you have no right to doubt — that 
had the jiarties thrown aside their disguises for one moment, and al- 
lowed themselves to be seen in their true character, he would have 
done what either of you would have done in the same circumstances ; 
that is, blown the case into atoms. So, therefore, we have shown 
(what in such a case is generally impossible) not only that a fraud was 
committed, but that the detection of the fraud would have defeated 
the purpose for which it was practiced. 

We have shown more — much more. It is incontestibly proved 
that by the collusion with Day the applicants succeeded in covering 
up the receipt by Goodyear of more than two hundred thousand dol- 
lars — a sum greatly larger than the whole amount which they dis- 
closed. It is pretended that they could have proved these receipts, 
thus falsely kept from the knowledge of the commissioner, to be for 
the hard-rubber patent. But that can not be true, for the simplest of 
all reasons : Charles Goodyear was not the owner of the hard-rubber 
patent, and never in his life had the smallest right to take a cent on 
that account. 

These combined parties were guilty of another concealment, which 
I will mention to show the enormous magnitude of the outrage which 
was perpetrated on public justice and private right. You know, and 
everybody knows, that Charles Goodyear's patent was the richest mo- 
nopoly this Government ever bestowed upon any private man. From 
the moment it issued the revenues of those who had it were counted 
by millions. But only a small part of its proceeds went directly into 
the pockets of Goodyear himself. These plaintiffs, and others with 



496 FORENSIC. 

whom tliey confederated to get the extension, had induced him to 
give them assignments and licenses for nothing, or next to nothing — 
stripped him of his right to an imperial income, and then sent him, 
old, sick, and insolvent, across the Atlantic, to starve and die in a 
foreign country. His genius, his virtue, the value of his invention, 
and the raggedness of his poverty, were the themes on which they 
dilated before the commissioner. Mr. Holt decided erroneously that, 
although the public had already paid for the invention a thousand 
times over, yet, as it was the assignees who got the money, he would 
grant the extension for the benevolent purpose of relieving the invent- 
or himself. He did not know (what he would have known but for 
the fraudulent conspiracy to deceive him) that those same assignees 
had their grip on the extension as tight as it ever was on the original 
patent ; that they had already secured the fruits of it to themselves ; 
that all the profits of the decision asked for would go, not to relieve 
Goodyear, but to swell the colossal fortunes of the sharp and heartless 
men who had already reduced him to the last extremes of want and 
necessity. These same assignees are now here declaring, in their argu- 
ments and on the record, that Groodyear's executors shall not have a 
cent out of this decree. Their attitude is as hostile to him as to us. 
With an ambidextrous rapacity which is fairly appalling they reach 
out one hand to grab the property of the defendants, and with the 
other they fight off the family and creditors of the man whose virtuous 
poverty they pleaded as the only foundation of their right to take it 
at all. H Mr. Holt had known these things, would he, could he, have 
granted the extension ? 

I submit that it is perfectly impossible. His written opinion, 
taken in connection with all the facts as they are now known, shows 
beyond doubt that his decision was obtained solely by, and in conse- 
quence of, the imposture practiced upon him. 

But we are told that the defendants are bound to be dumb on the 
subject of this fraud, atrocious as it is, because they consented to it. 
It is urged that we can not open our mouths to complain of it without 
admitting our own guilt, and nemo midiendum est suam turpitudinem 
allegans. Our learned friends are wrong in their law, and totally mis- 
taken about the matter of fact. 

A plaintiff who seeks equity must come into court at least with 
clean hands, if not with a pure heart. -If it be shown that his claim 
rests upon his own corruption, it is no answer to say that his opponent 
is as bad as himself. He can not make out a title for relief by accu- 
sations against the other party, which do not clear his own skirts. A 
court of law generally, and a chancellor alivays, refuses to interfere 
between two parties who are equally culj)able. In such a case the 
maxim is melior est conditio defendentis. 

But I answer this whole argument by denying the fact. I wish to 



FORENSIC. 497 

make the denial as emphatic as jjossible. If I had the voice of forty 
thousand trumpets I could not speak my contradiction more loudly 
than the truth would warrant. The defendants never said, or did, or 
suffered anything which directly or indirectly, expressly or by any 
kind of implication, involves them in, or connects them with, the dis- 
honest tricks by which the extension was procured. They knew noth- 
ing whatever of that most filthy bargain with Day ; did not suspect 
it ; had no reason to suspect it until long afterward, when the plaint- 
iffs and Day quarreled about the division of the spoils, and peached 
upon one another. 

Nor did they ever give any sort of assent to the extension itself, 
except what consisted in mere forbearance to oppose it. They had a 
license for making japanned or varnished goods, which, by its terms, 
was to last as long as any patent which Groodyear then had or might 
afterward be able to obtain. They had another license for shoes and 
boots, which was to expire with the then existing patent. Their last 
license, it was agreed, should be renewed in case the extension was ob- 
tained. The defendants did not intend to be engaged, and never were 
engaged, in any business except what these two licenses would fairly 
cover. They could pay the tariffs reserved and still have a reasonable 
profit. They had no interest which would justify them in coming 
here to spend money, time, and labor in opposing the application. 
Nor had they any hostile feelings to Goodyear ; they were his friends 
— one of them the most intimate friend he ever had ; they had sus- 
tained him in all his troubles ; they had given him their factory and 
materials to make goods for himself at a time when he was not able 
to pay them a cent, and he never did pay ; they were his creditors 
then, and are now : this record shows that they have an unsatisfied 
judgment against him for eighty thousand dollars, and that he died 
hopelessly insolvent. If he had lived, and could have prevented it, this 
iniquitous suit would never have been brought. Does the forbearance 
of the defendants under these circumstances disarm them of the right 
of self-defense against the void extension ? Must they submit in si- 
lence to be ruined by a fraud of which they knew nothing until its 
perpetrators gave them notice that they were to be its victims ? The 
plaintiffs' counsel have not pretended that there is any legal estoppel 
upon us — if there were, equity would relieve from it ; and I ask each 
member of the court to tax his memory and see whether he can recol- 
lect a single case, at all analogous to this one, in which the doctrine of 
equitable estoppel was, or ought to have been, applied. 

II. My second point does not lie so entirely on the surface of the 
case ; indeed, my ingenious friends have succeeded in burying it rather 
deep out of sight. I mean the separation of the two inventions into 
two patents, which makes this a somewhat curious case. 



198 FORENSIC. 

Your honors know that India rubber, in its native condition, is in- 
applicable to many purposes for which some of its qualities seem to fit 
it. A great number of persons were, consequently, engaged in trying 
to improve its usefulness. The first one who made any considerable 
progress in that direction was Nathaniel Hayward, who discovered that 
a compound of rubber and sulphur was very superior to native rubber, 
and he got a patent. The drawback upon the value of his invention 
was, that the cost of making the mixture was so great that it would 
not pay expenses. To remedy this, Chaffee (one of these defendants) 
invented a very complicated piece of machinery for grinding the rub- 
ber up and mixing it with the sulphur in proper proportions. His 
machine did this easily, cheaply, and rapidly, and it also was patented. 
After this, Ilayward's compound of rubber and sulphur, mixed to- 
gether by means of Chaffee's machine, went into universal use. The 
demand for it was extensive enough to keep several large factories in 
operation. But Ilayward's compound, superior as it was to simple 
rubber, was very far from being a perfect thing. It was so sensitive 
to heat and cold that in the winter it stiffened and became as hard 
as a bone, while in the summer it was so sticky that it could scarcely 
be handled. Then came Goodyear's invention, which consisted, simply, 
in the discovery that Hayward's compound of rubber and sulphur was 
a better article when cooked, baked, or roasted, than it was in its raw 
state. Subsequently to that he found that the addition of another ingre- 
dient to the compound, namely, a carbonate or other salt, or oxide of 
lead, increased the value of the compound. But the improvement, by 
cooking Ilayward's compound, was the great secret which he disclosed. 

He said that he had found this out by accident. He had a piece 
of Hayward's compound in his hand and let it drop thoughtlessly upon 
the cylinder of a stove, moderately heated, where it lay for some time. 
When he took it up he found it materially changed in some of its 
qualities. The alteration was like that which a piece of dough suffers 
when the action of heat converts it into bread. 

Unfortunately for himself and others, his description obscured it 
very much. He went round and round the point with a wide circum- 
locution. He was not an impostor — I don't say he was a humbug — 
but he was a quack, an empyric, a sciolist, without any of that grand 
simplicity which belongs to true genius. After exhausting his vocabu- 
lary of scientific words in showing how a thing might be baked in an 
oven without once using the Saxon word that would have made it per- 
fectly plain, he bespoke for the cooked article the name of vulcanized 
rubber — a term far-fetched from the Greek mythology — but it looked 
classical to some, and mysterious to others. He was like that ambi- 
tious and learned showman who said to his customers: ''This here 
animal the common folks calls a hilly-goat, but we gentlemen of sci- 
ence calls him the Guliclmus Capricornus.'^ 



FORENSIC. 499 

His discovery was precisely analogous to one that was made in Ire- 
land soon after Sir Walter Raleigh introduced potatoes into that coun- 
try. F(Jr a while the natives ate them raw, and did not find them very 
good ; but one of the tubers happened to fall into the hot ashes of a 
turf fire, and was found to be much improved. Since that time the 
Irish people have vulcanized all ihoiv potatoes. 

I have not made these remarks to depreciate the value of Good- 
year's invention. It was a great benefaction to the world. I only 
wish he had not tried to mystify the public by marring its simplicity. 
If it was true that he was the original discoverer, and the first to apply 
it to practical purposes, he was entitled to a patent. It was believed 
to be true, and he got a patent, which patent, re-issued and extended, 
was held by him and his assignees during his whole life-time, much to 
their profit. But after his death it was again surrendered and two 
patents were taken out, one as they say for the process and one for the 
product — one for the cause and one for the effect — one for the result 
and one for the only means by which the result can be brought about. 
I dare not call this absurd when I recollect who it is that thinks it 
very sensible and proper ; but to me it seems as inconsistent with rea- 
son as it would be for the inventor of a new horse-power to get one 
patent for putting the horse to the machine, another for putting the 
machine to the horse, and a third for putting the two together. The 
Circuit Court held that the original patent for Goodyear's single and 
simple invention was separable into two. Upon looking at one of 
them the judge ascertained that it was wholly void, but he held the 
other to be good, and good not only for that part of the invention 
which it was intended to cover, but good for all the purposes that both 
patents would have served, if both had been free from objection. One 
of the grave questions you have now to decide is whether this ruling 
can be sustained. 

I do not deny that on the surrender of one patent the re-issue may 
consist of two others. The act of Congress authorizes this, but ex- 
pressly confines it to cases where the re-issued patents are for distinct 
and separate parts of the invention covered by the original. What 
are "distinct and separate parts" ? Judge Grier says different inven- 
tions. Certainly the statute does not permit several patents, except 
for parts of an invention which are so far unconnected that they may 
be separately used for practical purposes. 

For instance, suppose a man to have a patent for a locomotive, 
which he describes as being fitted up with a steam whistle. He may 
surrender it and take two patents — one for tlie locomotive and one for 
the whistle — because a locomotive may be a useful machine without a 
whistle, and a whistle may be used, not only on a locomotive, but on 
the engine of a ship, or on a stationary engine at a mill or a furnace. 
But could he divide his whistle into two parts, and take one patent for 



500 FORENSIC. 

the process and one for the product of that ? The process there 
would be a certain mode of letting the steam escape through an aper- 
ture in the boiler, and the product is that shrill and startling noise 
which rushes along the track, darts across the plains, and echoes 
among the hills. If these could be separated into different patents, 
then they might he sold to different persons. One would have the 
exclusive right to let his steam escape, provided he made no noise, and 
the other might whistle as much as he pleased, if he did not use the 
only possible means of doing so. This is the reductio ad ahsurdum 
of the opposing doctrine, and it shows fairly the legal impossibility of 
separating process and product where one is useless without the other. 

I am not flying in the face of any decision that has ever been 
made by this court or by any judge on the circuit. I do not deny that 
a patent may issue for a product alone, or for a process alone. But 
this is consistent with reason and law only where the process is a new 
means of bringing about some result previously known but produced 
in other ways, or else where the product is a new result of means pre- 
viously used and still applicable to other purposes. But, where the 
two stand together in the invariable relation of cause and effect — 
where the process always produces one result and the product comes 
only from the one process — then God and Nature have put them to- 
gether, and no man can put them asunder. 

Emerson got a patent for making brass. Brass had been known and 
used from the time of Tubal Cain, but previous to 1780 it had been 
made by mixing copper clippings with calamine, a native carbonate of 
zinc, and heating them until the carbon was driven off and the zinc 
became incorporated with the copper. Emerson adopted the simple 
plan of making the amalgam by taking its two constituent metals in 
their pure state and melting them together. His patent was for noth- 
ing but a process. 

The man who invented German silver had or might have had a 
patent for the product only. That was a new amalgam composed 
mainly of copper and tin. The modes of uniting metals were numer- 
ous, and almost as old as the hills. But this man could say to the 
world, " No matter how you mingle these metallic elements ; you may 
hammer them together in a forge ; you may heat them together in a 
crucible until one is absorbed by the other ; you may melt them to- 
gether ; you may melt them separately and run them together while 
they are in a state of fusion ; or you may melt the one which fuses at 
the highest temperature and throw cold lumps of the other into the 
molten mass ; but howsoever you do it you shall not by any process 
make the product of which I first discovered the value, and which I 
was the first to make known," 

What Goodyear discovered was simply a law of nature, that a cer- 
tain cause would produce a certain effect upon rubber and sulphur. 



FORENSIC. 501 

you can not put this into any intelligible form of words without ex- 
pressing the whole of it ; no effort of the mind will enable you to 
conceive it in separate parts ; the effect can not exist without the 
cause, and the cause is not cause at all unless it produces the effect. 

Judge Clifford demonstrated the impossibility of dividing this in- 
vention. He found that the patent for the process was void, and of 
course we were not infringers of that. But he said that we had 
infringed the patent for the product, which was good. Upon these 
facts he did his very best — I take it upon me to say that he exerted 
all his ingenuity to the utmost — to divide the damages and apportion 
them to the different patents ; for as an honest man and an upright judge 
it must have been the desire of his whole heart to relieve us from any 
damages on account of a charge which he found us not to be guilty 
of. But he could not make the separation even theoretically. Sharp 
as his metaphysical scissors were, and skillful as you know him to be 
in the use of them, he could find no place where he could insert them 
between process and product in this case. He saw plainly enough that 
separation was destruction. 

But in truth there is no product here. Changing the rubber and 
sulphur by baking it is not making a new thing. The temporary ap- 
plication of an external agent changes one quality of the compound, 
namely, its sensitiveness to the variations of weather, and leaves its 
other characteristics — flexibility, elasticity, imperviousness — unaltered. 
There is no change in the substance of the compound itself. 

Judge Grier once made a remark which these patentees seem to 
have caught at with great avidity. It was not a decisioti of either fact 
or law, but merely obiter dictum, and I think he himself must now 
believe it to be wrong. He said that, as we could know nothing of 
matter except by its qualities, the matter was new if its quality was 
changed. This is specious enough to have received the assent of some 
great thinkers long before Judge Grier uttered it. The metaphysical 
philosophy of the last century was full of it. Locke began by assert- 
ing that the secondary qualities of bodies had no inherent connection 
with the substances to which they seemed to belong, but only with the 
organs which perceived them : color existed in the eye, the odor of a 
violet in the nose, and the temperature of a hot iron in the nerves that 
shrunk from its contact ; or, as Butler put it, 

" There's no more lieat in fire that lieats you, 
Than there is pain in stick that beats you." 

Berkeley, by the same reasoning, showed the unreality of the pri- 
mary qualities, and removed the seat of their ideal existence to the 
mind, where the ultimate impression of them was made. Starting 
with the assumption that matter was nothing but an assemblage of 
qualities, and, like Judge Grier, denying all other knowledge of sub- 



502 FORENSIC, 

stance, the reasoning seemed to be faultless. Dugald Stewart said 
that Bishop Berkeley had proved by unanswerable arguments what 
no man in his senses could possibly believe. It was a dismal theory. 
It abolished the created universe without restoring the reign of 
Chaos and old Night. It dissolved all human relations, for the 
bodies of men were merely ''such stuff as dreams are made of." It 
did not *' strike flat the thick rotundity of the globe," but it did 
worse, for it made it a nonentity. " This brave o'erhanging firma- 
ment, this gorgeous canopy, fretted with golden stars," was not even 
what Hamlet called it, ''a pestilent congregation of vapors" ; it was 
a huge phantasm, hung on high to cheat and delude us. The fun- 
damental error on which all this '' nonsense was piled on nonsense 
to the skies " consisted in the assumption that we could know noth- 
ing of matter except by its qualities. If you adopt it, you will craze 
the law, and make it as mad as the metaphysics of Berkeley and 
Hume. 

You can not ignore substance, and you can never satisfy the com- 
mon sense of the world by holding that a new product, separately pat- 
entable as such, is made by a person who merely changes a single 
quality of one substance by the temporary operation of another one 
upon it. When you send a stream of electricity over a wire wrapped 
round a piece of soft iron, you change the quality of the iron, by mak- 
ing it capable of attracting other iron, and you restore its original con- 
dition when you withdraw the electric current. Does a telegraph- 
operator create and uncreate a new product every time he closes and 
opens the galvanic circle ? If you take a piece of smooth steel and 
drive it repeatedly through plates of iron, it will become permanently 
magnetized ; but the steel remains steel, the same substance with one 
of its qualities altered ; and no one can say that a new product has 
therefore been made. 

This preposterous idea of dividing Goodyear's invention into two 
parts was started and acted upon for tlie purpose of defrauding the 
public, and preventing other inventors from getting the just reward of 
their science and skill. But the legal effect of it has really been to 
make both the patents utterly void. If you regard them as independ- 
ent patents, they are void, because each of them is perfectly useless, 
and tlie part covered by it incapable of being applied to any practical 
purpose. Both are in palpable violation of the act of Congress, because 
they are not for distinct and separate parts of an invention. The best 
you can possibly do for the plaintiffs is to treat the two patents as one 
instrument, and that will not help them, for the whole claim, taken 
and considered together, is admitted by themselves to be false. They 
are in such connection that, supposing one to be sound, the acknowl- 
edged overclaim of the other infects it, ''like a mildewed ear blasting 
its wholesome brother." 



FORENSIC. 503 

III. But we insist that both patents are unsound and void, because 
the claim is overstated in each of tliem. 

What was the invention ? The improvement of Hayward's com- 
pound by cooking it. Afterward he claimed that he could make the 
compound still better by putting in an additional ingredient, to wit, 
carbonate or oxide of lead. This was the whole length and breadth of 
his discovery. If he ever knew anything beyond this, he did not dis- 
close it, but *'died and made no sign." 

His experiments were all made with Para rubber. There were 
many other elastic gums, including gutta-percha, but they would not 
cook to advantage without being compounded with other ingredients 
besides sulphur and lead. Some improvement, therefore, must be 
made on Goodyear's invention, or else the business would come to a 
dead stand whenever the supply of Para rubber would give out, as it 
soon did. These other gums began to be used, but it was impossible 
to make a merchantable article without additional ingredients, and the 
skill of many manufacturers was employed in finding out how to vul- 
canize them. The owners of the Goodyear patent saw that other gums, 
unknown to him, were about to be vulcanized by means which he had 
never thought of. In order to anticipate all improvements, and keep 
the undivided monopoly of the business in their own hands, they sur- 
rendered their patent and took a re-issue of two. In one they claimed 
"all vulcanizablo gums," and in the other they asserted their exclusive 
right to vulcanize them, not only by using the ingredients which Good- 
year had discovered, but all others. They claim that all vulcanizing 
of all gums is within Goodyear's invention, and they claim it equally 
whether it be effected ''with or without other ingredients." By these 
two patents they say to all who engage in the business, "You may go 
to the farthest part of the world for new gums to vulcanize, and, after 
you find them, you may search the earth, the ocean, and the air for 
new ingredients to make them useful, but all your skill, and science, 
and labor in making these indispensable improvements must inure to 
our benefit. Sic vos non voiis." 

I beg your honors to consider the authorities on this point which 
we have cited in our brief. We are within the principle of all the 
cases, and the opinion of the court in Morse vs. O'Reilly is literally 
applicable to the patent which our opponents try to sustain. 

IV. A word now about our license. The plaintiffs at one time 
contended that it was in conflict with the license previously granted to 
the Naugatuck Company ; but that question has not been raised here. 
Judge Clifford settled it completely, and put it to sleep. 

Mr. Justice Clifford. — Several judges have decided it differently, 
but I still think I was right. 

Mr. Black. — I was not aware that any judge had ever doubted 



504 FORENSIC. 

upon the point, and I do not see how he could dissent from your con- 
clusion if he saw your reasons. It is apparent that you have convinced 
the opposing counsel, much against their will — certainly against their 
interests — and a judgment which silences them ought to be very satis- 
factory to others. 

The argumentum ad Jiominem has been tried upon us. It is said 
that the defendants were sued, or threatened with a suit, in 1856, for 
making shoes and boots, and they compromised without pleading or 
producing this license. The fact is true, and I hope I can give a satis- 
factory reason for the refusal of my clients to defend against that suit 
under this license. They were too honest to make a defense which they 
believed to be false. They knew that a license to manufacture ja- 
panned cloths was not a license to make shoes. Our distinguished 
opponents must have felt a sore need of arguments before they could 
have thought of resorting to this one. 

The truth is that only one rational ground can be taken against 
our license. There is but one fair way to get clear of it, and that is 
to sustain Judge Clifford's construction of it, and show that it means 
something wholly different from what we understand it to mean. If 
the "japanned cloths" of the license are the kind of goods we made, 
that puts an end to all controversy. 

Mr. Justice Clifford expressed his assent to this. 

Mr. Black. — I am glad to find that, in your honor's mind, as well 
as in my own, the dimensions of the question are narrow and simple. 
When you come to review yourself, I know with what alacrity you will 
embrace what you see to be the truth. 

Let me ask you, then, to look carefully at this license. It is a 
most important paper to the parties, and it deserves your close and 
serious attention. It is dated in 1846 ; it is in proper form ; it is un- 
deniably authentic ; it is a license from Goodyear, the patentee, to 
Chaffee, one of the defendants, and his assigns, authorizing him and 
them, for a consideration therein expressed, to use the invention of 
Goodyear in the manufacture of certain goods. What goods ? 

We do not assert — we have never asserted — that the license is uni- 
versal. It is limited. But within the limits it is clear and unambig- 
uous. It does certainly give to the licensee and his assigns a full and 
complete right to use the invention of the patentee to cover cloths 
with vulcanized rubber. We can cover nothing but woven fabrics 
called cloths ; not shoes or wooden-ware or metallic substances. And 
it does not include all cloths, but only such as shall be so covered for 
the purpose of being japatmed. But if they are japanned, they may 
be of any color — plain, marbled, or variegated — and there is no re- 
striction upon the size or shape of them. They may have any form 
to suit the market, and the purchasers may use them for anything 
they like — to cover tables, pianos, or carriages ; for firemen's capes. 



FORENSIC. 505 

soldiers' blankets, ponchos, or shelter-tents. I have stated the true 
legal effect of the license ; you can not give it any other effect without 
interpolating into the contract what the parties did not put and never 
meant to put there. It is perfectly certain that Goodyear desired his 
invention to be used as extensively as possible for making japanned 
cloths, and of course he wanted the cloths, when made, to be iTsed for 
all the purposes to which they could be made applicable. This was 
equally the interest of both parties. If it had been expressed in am- 
biguous terms, the licensees would be entitled to the benefit of the 
doubt, upon the familiar rule of interpretation, which requires that 
all private deeds shall be construed most strongly in favor of the 
grantee. It remains, therefore, only to consider, wlietlier the goods 
we are sued for making are japanned cloths or not. 

It is not denied that our use of the invention consists in covering 
cloths with vulcanized rubber. It is equally undeniable that these 
cloths thus covered are varnished, so as to give them a smooth, glossy, 
lustrous surface ; about this there is no dispute. They prove it, and 
we prove it, and nobody denies it. We say that cloths thus made, 
covered, and finished are japanned, and here we are met by a flat 
contradiction ; our opponents assert that this is not japanning. The 
question ought to be a simple one and easily decided. 

In the first place, we think we can safely rely on your knowledge 
of the English language, as spoken in this country, for a just inter- 
pretation of the word in question. You know that in common par- 
lance a thing japanned is one which has a very smooth, bright surface, 
and is so called because it resembles the wares imported into this 
country and Europe fromk Japan. You are also well enough ac- 
quainted with the mechanic arts to know that the kind of surface 
called ^'japanned " can be produced only by putting a varnish on it. 
If you know this I need not tell you that our cloths are japanned, 
for they have the lustrous surface produced by skillful varnishing. 

But if you are not Avilling to rely on your own unassisted knowl- 
edge of words and things, look at the dictionaries. Webster defines 
japanning just as we do — producing a highly polished surface, by 
means of varnish, after the manner of the Japanese. Worcester 
makes it the mere synonym of varnishing. 

If this be not satisfactory, take the highest kind of scientific au- 
thority. The "National Cyclopaedia" (London, 1849) describes the 
art, gives its history, shows forth the modes of its practice, and ac- 
counts for the word which designates it : A japanned article always 
has a lustrous surface, which is alioays produced by applying var- 
nish ; there is no other means of producing it either in Europe, 
Japan, China, Siam, Burmah, or elsewhere, so far as known. The 
''Encyclopaedia Americana" gives a similar but not so detailed an ac- 
count. All authorities concur in saying that varnishing h japanning. 



506 FORENSIC. 

But perhaps this is not suflBcient. Then look at the evidence of 
the experts. Seven witnesses, of unimi^eachable character and well 
versed in the business, come forward and swear that our cloths are ja- 
fanned, because they are varnished ; that japanning means varnish- 
ing and nothing else ; that in fact the word japanning has been dis- 
placed to a great extent by the terms varnisliing and lustering, which 
signify the same thing. One solitary man is produced on the other 
side who says that our cloths are not japanned. He does not deny 
that they have the glossy surface of japanned ware, and he admits 
they are varnished ; but he says they are not japanned because, for- 
sooth, we do not put the varnish on the rubber cloth as he puts it on 
calf-skin when he makes patent leather ! The idiot who could make 
such a statement, and give such a reason for it, is the only authority 
our opponents have for asserting that our manufacture is not inside 
of the license. 

Besides all this, we have proved the contemporaneous construction 
which the license received from the parties themselves. Immediately 
after its date Chaffee began the manufacture of japanned cloths at 
Naugatuck. He japanned them — he gave them a varnished surface. 
Goodyear was there and saw it done, and recognized that as the art 
which he had described in the license as japanning. He not only 
made no objection to such a manufacture under the license, but he 
besought the licensee to continue it when his losses admonished him 
to quit. Not only did Goodyear acknowledge this to be the true 
meaning of the license, but the Naugatuck Company, under whom 
the plaintiffs claim, made the same admission. That corporation 
aided and assisted Chaffee in making varnished cloths — varnished 
blankets— under this license ; and now the plaintiffs assert that the 
license does not protect him or his assignees, when they are doing the 
same thing. I insist on it that they are estopped to deny now what 
the party they claim under admitted then. But I do not care about 
using the argument in that way ; the point I take is too strong on 
other grounds to need it. 

This evidence that all parties regarded varnished cloths as ja- 
panned, within the meaning of the license, immediately after its date, 
has made a powerful impression on our adversaries. They have done 
their utmost to resist it. But their utmost amounts to very little. 
They contend that, inasmuch as the varnish was put on the cloth at 
Naugatuck after the rubber was on and vulcanized, and at Provi- 
dence the rubber and the varnish were put on together, before either 
was heated, therefore, the cloth was not japanned, that is to say, not 
varnished at all, at the latter place. This mode of reasoning they 
must have learned from that curious, and somewhat hardy, witness 
who swore that varnishing was not varnishing unless the varnish was 
put on leather and cloth in exactly the same way. 



FORENSIC. 507 

You can not make even a superficial investigation of this art of 
japanning without learning that the word applies to all kinds of var- 
nishing, where the object is to produce a highly polished and lustrous 
surface, whether upon metal, wood, paper, rubber, or leather ; and no 
matter what previous preparation may have been made for the recep- 
tion of the varnish. The modes of doing it are infinitely various, but 
it is all japanning. 

This license is not open to any question of construction ; it re- 
quires no interpretation. It means what it says. It does not speak 
in an unknown tongue ; it is not ambiguous in its terms. It does not 
"palter with us in a double sense." It has no hidden signification 
which needs to be spelled out or conjectured. The plain, obvious, 
and undoubted import of its words is to give us the privilege of mak- 
ing any amount of varnished rubber cloths, paying to Goodyear three 
cents per yard as royalty or tariff. We have shown this by an appeal 
to your own knowledge of the language ; by the dictionaries and the 
encyclopedias ; by the testimony of every sensible and intelligent wit- 
ness, and by the acts of all the parties. In the face of all this our 
adversaries have the boldness to say that we manufacture these var- 
nished or japanned cloths without a license. 

But there is one consideration which seems perfectly conclusive : 
this license to make japanned cloths means something. If we are 
mistaken about it, give us the true intent. If the words are not to be 
understood in their popular sense, or according to their definition in 
the dictionaries and books of science, or agreeably to the acceptation of 
them by men engaged in the trade, I demand to know how they are to 
be taken. If the license does not authorize the use of Goodyear's inven- 
tion to make cloths with a highly varnished surface, such as the de- 
fendants are sued for making, tell us what it does authorize. It will 
not do to say it has no meaning at all, for that would be a gross viola- 
tion of the rule quoted with so much approbation by Judge Clifford, 
that every instrument must be so construed, ut res 7nagis valeat 
quam pereat. There never lived two men less likely than Goodyear 
and Chaffee to make an insensible and absurd paper on any subject 
connected with the rubber business ; for they had devoted their lives 
to it ; they had studied it as men seldom study anything ; both had 
made it the subject of their contemplation by day and night for many 
years. But our opponents leave you no alternative except to under- 
stand the license as we understand it, or else treat it as wholly unin- 
telligible and meaningless. You are compelled to say either that we 
had a good license, which justified every act we did, or else that Good- 
year and Chaffee did not know what they were about when they 
made it. 

No party, counselor or witness, on the side of the plaintiffs, has 

dared to bring forward a definition or description of japanning which 
33 



508 FORENSIC. 

differs from ours. They can say, easily enough, that ours is wrong ; 
but what is right ? A specific truth, established by authority, and 
resting upon common sense, is not to be overthrown by an empty 
negative ; the light can not be extinguished by pouring darkness upon 
it. In a question of art or physical science the ignorance which con- 
fesses its inability to define one of its commonest terms is not entitled 
to the weight of a feather in the judicial scale. The solitary witness 
who did not Icnow what the license meant is but a sorry match for the 
half-dozen of intelligent gentlemen who did know. 

V. I might say much, but I will say only a little on the question 
of damages. I have three reasons for this : (1) I must hasten to a 
close ; (3) This matter has been fully argued already ; and (3) I can 
not believe that you will ever reach this part of the case. It can not 
be that you will give a7iy damages in a suit founded upon a patent 
which was extended by fraud and corruption, cut into halves by the 
owners for the purpose of overstating the claim, and with each of 
the halves claiming more than the whole of the invention. If you 
could allow such a party on such evidence to recover at all, you surely 
could not permit him to get damages from a defendant who holds a 
clear, plain license like ours. But still I wish to justify myself for 
the strong statement I have made against the magnitude of this de- 
cree. 

There were three different inventions used in the manufacture of 
these cloths : Hayward's, for the compound of rubber and sulphur ; 
Chaffee's, for the machine which made the mixture ; and Goodyear's, 
for cooking it. Each was equally indispensable. All of them had 
been patented and all the patents had expired. But the patent for 
Goodyear's had been extended. Is he entitled to recover all the profits 
made by the use of all these inventions ? Certainly he could recover 
only his own if the others had also been extended. Congress and the 
Patent-Office refused to extend them, for the expressed reason that the 
public had already paid for them, and manufacturers were fairly en- 
titled to use them without paying again. But this decree bases itself 
on a principle which totally defeats the known intentions of Congress. 
The public is not relieved, but the refusal of an extension to Hayward 
inures to the benefit of Good3^ear ; and Chaffee can not use his own 
invention without Goodyear's permission. The decree, in effect, says 
that the expiration of the other two did not extinguish the exclusive 
rights of the patentees, and make their inventions common property, 
but merely operated as a transfer of those rights to Goodyear's assign- 
ees. I beg your honors to consider if this be right ; and if it be, tell 
us how it may be vindicated so as to make it acceptable to the minds 
of fair men, who are not sufficiently skilled in dialectics to compre- 
hend the justice of it without your help. I am particularly anxious 



FORENSIC. 509 

that my client, Colonel Brown, who is a patriot soldier and a good 
Christian gentleman, should understand this point. If he is compelled 
to pay hundreds of thousands of dollars for the use of expired patents 
because these greedy cormorants got another one extended by fraud, 
he ought to know why, and it is somebody's duty to tell him. 

Another thing : one of the patents sued on is admitted to be void. 
Why should we be compelled to pay for that ? You may answer : be- 
cause the inventions covered by these two patents are so connected 
that the infringement of one is necessarily an infringement of the 
other ; one can not be used without using both. Be it so. I admit 
that to be true. But it proves that there can be no recovery on either, 
for it shows that they are not for separate and distinct inventions, 
and therefore both are void. Here we have our learned opponents on 
the horns of a dilemma. If they have two patents for two distinct 
and separate parts of an invention, and they recover on one but not 
on the other, their legal and equitable right to at least one half of 
the damages is gone hopelessly ; for, if the inventions are distinct, 
so are the infringements and the damages. If, on the other hand, 
they say the two patents are for one invention, and the damages can 
not be separated, then both are void, and their whole claim is over- 
board. 

The rule of damages seems to be plain enough. The principle is 
well settled that the patentee is entitled only to compensation. He 
can not recover vindictive or exemplary damages. Where the patent- 
ee is not himself engaged in using the invention, he is injured by 
an infringer only to the extent of what he has lost by missing the sale 
of a license. In a case like this, a patentee should have what a fair 
man would have been willing to take for the use of his invention, so 
far as it is covered by a sound patent. Assuming the one patent in 
this case to be properly sustained by the Circuit Court, the decree, 
instead of giving damages for all three of the inventions, should have 
ascertained what was lost by the infringement of half a one. The 
damages are at least six times as large as they ought to be if the court 
was right in everything else. 

But the court not only made us pay for three inventions, but the 
damages were greatly increased by counting against us, and awarding 
to the plaintiffs, all that we made as merchants by the purchase of 
goods which afterward rose in the market. What this had to do with 
the patent right, or why we should account for profits so made, it is 
impossible to see. 

I will say nothing on the other exceptions, for I do not wish to re- 
peat what was so impressively said by Mr. Payne and Mr. Cushing. I 
will make no reply to the merry remarks of Mr. Evarts and Mr. 
Stoughton on the compensation claimed by the defendants for their 
labor. That part of the argument of my learned friends, considered 



510 FORENSIC. 

merely as wit and eloquence, was a splendid success ; but it lacked 
logic and law most sadly. 

I repeat my conviction (which is also that of my colleagues) that 
the master's report was confirmed by a kind of default, for want of 
convenient time to consider it or to hear it discussed. The judge knew 
it would come here, at all events, and he preferred to examine it along 
with his brethren. 

But the plaintiffs had full swing before the master. They got 
whatever they chose to demand. They swelled the report in every 
possible way, and in some ways that might have been thought impos- 
sible. It sprung out of nothing, but it grew into proportions of pro- 
digious magnitude. Nothing like it has ever been seen in this class 
of cases. Mammoth decrees have been made before, but this one 
*' upheaves its vastness" like the huge '' behemoth, biggest born of 
earth." 

I am conscious that all this discussion about damages is a waste of 
time. There will be no damages. The fraud in the extension is 
fatal ; the separation of the invention destroyed it ; the overclaim 
made both patents void, and our license is as complete and perfect a 
defense as any court ever saw. 

And now, if you are as tired of listening as I am of si)eaking, you 
will be glad to hear me say that I am done . 



IN DEFENSE OF THE RIGHT TO TRIAL BY JURY.— EX- 
PARTE MILLIGAN. 

STJPBEME OOUET OF THE UNITED STATES. 

"Tms defense of the right of trial by jury is a marvelous display of Judge 
Black's extraordinary power and abilities as a lawyer, and the enduring im- 
portance of the subject will render it interesting as long as the individual lib- 
erty of the citizen shall be preserved as part of the framework of human gov- 
ernment. It was delivered during a period of great political excitement, before 
the passions and prejudices stirred up by the greatest civil war in history had 
been allayed. It affected the destiny of one whose crimes were aimed at 
the destruction of the Government itself, and the public desire to see the sen- 
tence of the commission executed was very general. Since the anger and ex- 
citement of the times have passed away, and the great questions involved in 
this case present tliemselves in their true aspect and importance, the argument 
of Judge Black becomes conspicuous as a defense of the dearest rights of the 
citizen, and stands like a monument to which the eyes of mankind will turn in 
the hour when their rights are assailed. It will be admired by the student as a 
comprehensive exposition of the fundamental principles upon which the law of 
civil liberty depends, and the causes which led to their perfection and adoption 



FORENSIC. 611 

under our system. The subject loses the dry, tedious detail of a legal argu- 
ment, and becomes animated with the spirit and genius of the speaker, while 
presenting a review of the struggle between freedom and arbitrary power which 
the world has witnessed for centuries. It will be considered precious by per- 
sons in every walk of life, for it defines in a masterly manner the natural rights 
guaranteed to each individual by the organic law, and its importance in this 
respect clothes it with the heritage of immortality." — " Great Speeches by Great 
Lawyers^'''' Baker^ Voorhis & Co. 

May it please your Honors: 

I am not afraid that you will underrate the importance of this ease. 
It concerns the rights of the whole people. Such questions have gen- 
erally been settled by arms. But since the beginning of the world no 
battle has ever been lost or won upon which the liberties of a nation 
were so distinctly staked as they are on the result of this argument. 
The pen that writes the judgment of the court will be mightier for 
good or for evil than any sword that ever was wielded by mortal 
arm. 

As might be expected from the nature of the subject, it has been 
a good deal discussed elsewhere, in legislative bodies, in public assem- 
blies, and in the newspaper press of the country. But there it has been 
mingled with interests and feelings not very friendly to a correct 
conclusion. Here we are in a higher atmosphere, where no passion 
can disturb the judgment or shake the even balance in which the 
scales of reason are held. Here it is purely a judicial question ; and 
I can speak for my colleagues as well as myself when I say that we 
have no thought to suggest which we do not suppose to be a fair 
element in the strictly legal judgment which you are required to 
make up. 

In performing the duty assigned to me in the case, I shall neces- 
sarily refer to the mere rudiments of constitutional law ; to the most 
commonplace topics of history, and to those plain rules of justice and 
right which pervade all our institutions. I beg your honors to believe 
that this is not done because I think that the court, or any member of 
it, is less familiar with these things than I am, or less sensible of their 
value ; but simply and only because, according to my view of the sub- 
ject, there is absolutely no other way of dealing with it. If the fun- 
damental principles of American liberty are attacked, and we are 
driven behind the inner walls of the Constitution to defend them, we 
can repel the assault only with those same old weapons which our an- 
cestors used a hundred years ago. You must not think the worse of 
our armor because it happens to be old-fashioned and looks a little 
rusty from long disuse. 

The case before you presents but a single point, and that an exceed- 
ingly plain one. It is not encumbered with any of those vexed ques- 
tions that might be expected to arise out of a great war. You are not 



612 FORENSIC. 

called upon to decide what kind of rule a military commander may 
impose upon the inhabitants of a hostile country which he occupies as 
a conqueror, or what punishment he may inflict upon the soldiers of 
his own army or the followers of his camp ; or yet how he may deal 
with civilians in a beleaguered city or other place in a state of actual 
siege, which he is required to defend against a public enemy. This 
contest covers no such ground as that. The men whose acts we com- 
plain of erected themselves into a tribunal for the trial and punish- 
ment of citizens who were connected in no way whatever with the 
army or navy. And this they did in the midst of a community whose 
social and legal organization had never been disturbed by any war or 
insurrection, where the courts were wide open, where judicial process 
was executed every day without interruption, and where all the civil 
authorities, both State and national, were in full exercise of their 
functions. 

My clients were dragged before this strange tribunal, and after a 
proceeding, which it would be mere mockery to call a trial, they were 
ordered to be hung. The charge against them was put into writing 
and is found on this record, but you will not be able to decipher its 
meaning. The relators were not accused of treason ; for no act is 
imputed to them which, if true, would come within the definition of 
that crime. It was not conspiracy under the act of 1861 ; for all con- 
cerned in this business must have known that conspiracy was not a 
capital offense. If the commissioners were able to read English, they 
could not help but see that it was made jDunishable, even by fine and 
imprisonment, only upon condition that the parties should first be 
convicted before a Circuit or District Court of the United States. The 
Judge-Advocate must have meant to charge them with some offense 
unknown to the laws, which he chose to make capital by legislation of 
his own, and the commissioners were so profoundly ignorant as to 
think that the legal innocence of the parties made no difference in the 
case. I do not say, what Sir James Mackintosh said of a similar pro- 
ceeding, that the trial was a mere conspiracy to commit willful mur- 
der upon three innocent men. The commissioners are not on trial ; 
they are absent and undefended ; and they are entitled to the benefit 
of that charity which presumes them to be wholly unacquainted with 
the first principles of natural justice, and quite unable to comprehend 
either the law or the facts of a criminal cause. 

Keeping the character of the charges in mind, let us come at once 
to the simple question upon which the court below divided in opinion : 
Had the commissioners jurisdiction — were they invested with legal 
authority to try the relators and put them to death for the offense of 
which they were accused ? We answer. No ; and therefore the whole 
proceeding, from beginning to end, was utterly null and void. On the 
other hand, it is absolutely necessary for those who oppose us to assert. 



FORENSIC. 513 

and tliey do assert, that the commissioners had complete legal juris- 
diction, both of the subject-matter and of the parties, so that their 
judgment upon the law and the facts is absolutely conclusive and 
binding, not subject to correction, nor open to inquiry in any court 
whatever. Of these two opposite views, you must adojit one or 
the other ; for there is no middle ground on which you can possibly 
stand. 

I need not say (for it is the law of the horn -books) that where a 
court (whatever may be its power in other respects) presumes to try 
a man for an offense of which it has no right to take judicial cogni- 
zance, all its proceedings in that case are null and void. If the party 
is acquitted, he can not plead the acquittal afterward in bar of another 
prosecution ; if he is found guilty and sentenced, he is entitled to be 
relieved from the punishment. If a Circuit Court of the United States 
should undertake to try a party for an offense clearly within the exclu- 
sive jurisdiction of the State courts, the judgment could have no effect. 
If a county court in the interior of a State should arrest an officer of 
the Federal navy, try him, and order him to be hung for some offense 
against the law of nations, committed upon the high seas or in a for- 
eign port, nobody would treat such a judgment otherwise than with 
mere dejision. The Federal courts have jurisdiction to try offenses 
against the laws of the United States, and the authority of the State 
courts is confined to the punishment of acts which are made penal by 
State laws. It follows that where the accusation does not amount to 
an offense against the law of either the State or Federal Government, 
no court can have jurisdiction to try it. Suppose, for example, that 
the judges of this court should organize themselves into a tribunal to 
try a man for witchcraft, or heresy, or treason against the Confederate 
States of America, would anybody say that your judgment had the 
least validity ? 

I care not, therefore, whether the relators were intended to be 
charged with treason or consjoiracy or with some offense of which the 
law takes no notice. Either or any way, the men who undertook to 
try them had no jurisdiction of the suhject-matter. 

Nor had they jurisdiction of the parties. It is not pretended that 
this was a case of impeachment, or a case arising in the land or naval 
forces. It is either nothing at all, or else it is a simple crime against 
the United States, committed by private individuals not in the public 
service, civil or military. Persons standing in that relation to the 
Government are answerable for the offenses which they may commit 
only to the civil courts of the country. So says the Constitution, as 
we read it ; and the act of Congress of March 3, 1863, which was passed 
with express reference to persons precisely in the situation of these 
men, declares that they shall be delivered up for trial to the proper 
civil authorities. 



514 FORENSIC. 

There being no jurisdiction of the subject-matter or of the parties, 
you are bound to relieve the petitioners. It is as much the duty of a* 
judge to protect the innocent as it is to punish the guilty. Suppose 
that the secretary of some department should take it into his head to 
establish an ecclesiastical tribunal here in the city of Washington, 
composed of clergymen "organized to convict" everybody who prays 
after a fashion inconsistent with the supposed safety of the State. If 
he would select the members with a proper regard to the odium tlieo- 
logicum, I think I could insure him a commission that would hang 
every man and woman who might be brought before it. But would 
you, the judges of the land, stand by and see their sentences executed ? 
No ; you would interpose your lorit of prohibition, your habeas corpus, 
or any other process that might be at your command, between them 
and their victims. And you would do that for precisely the reason 
which requires your intervention here : because religious errors, like 
political errors, are not crimes which anybody in this country has juris- 
diction to punish, and because ecclesiastical commissions, like military 
commissions, are not among the judicial institutions of this people. 
Our fathers long ago cast them both aside among the rubbish of the 
Dark Ages ; and they intended that we, their children, should know 
them only that we might blush and shudder at the shameless injustice 
and the brutal cruelties which they were allowed to perpetrate in other 
times and other countries. 

But our friends on the other side are not at all impressed with these 
views. Their brief corresponds exactly with the doctrines propounded 
by the Attorney- General, in a very elaborate official paper which he 
published last July, upon this same subject. He then avowed it to 
be his settled and deliberate opinion that the military might " tahe 
and kill, try and execute " (I use his own words) persons who had no 
sort of connection with the army or navy. And, though this be done 
in the face of the open courts, the judicial authority, according to 
him, are utterly powerless to prevent the slaughter which may thus 
be carried on. That is the thesis which the Attorney-General and his 
assistant counselors are to maintain this day, if they can maintain it, 
with all the power of their artful eloquence. 

We, on the other hand, submit that a person not in the military or 
naval service can not be punished at all until he has had a fair, open, 
public trial before an impartial jury, in an ordained and established 
court, to which the jurisdiction has been given by law to try him for 
that specific offense. There is our proposition. Between the ground 
we take and the ground they occupy there is and there can be no com- 
promise. It is one way or the other. 

Our proposition ought to be received as true without any argument 
to support it ; because if that, or something precisely equivalent to it, 
be not a part of our law, this is not, what we have always supposed it 



FORENSIC. 515 

to be, a free country. Nevertheless, I take upon myself the burden of 
showing affirmatively not only that it is true, but that it is immovably 
fixed in the very framework of the Government, so that it is utterly 
impossible to detach it without destroying the whole political struct- 
ure under which we live. By removing it you destroy the life of this 
nation as completely as you would destroy the life of an individual by 
cutting the heart out of his body. I proceed to the proof. 

In the first place, the self-evident truth will not be denied that the 
trial and punishment of an oJSender against the Government is the 
exercise of judicial authority. That is a kind of authority which 
would be lost by being diffused among the masses of the people. A 
judge would be no judge if everybody else were a judge as well as he. 
Therefore in every society, however rude or however perfect its organ- 
ization, the judicial authority is always committed to the hands of 
particular persons, who are trusted to use it wisely and well ; and 
their authority is exclusive ; they can not share it with others to 
whom it has not been committed. Where, then, is the judicial power 
in this country ? Who are the depositaries of it here ? The Federal 
Constitution answers that question in very plain words, by declaring 
that "the judicial power of the United States shall he vested in one 
Supreme Court, and in such inferior courts as Congress may from 
time to time ordain and establish. " Congress has, from time to time, 
ordained and established certain inferior courts ; and in them, to- 
gether with the one Supreme Court to which they are subordinate, is 
vested all the judicial power, properly so called, which the United 
States can lawfully exercise. That was the compact made with the 
General Government at the time it was created. The States and the 
people agreed to bestow upon that Government a certain portion of 
the judicial power, which otherwise would have remained in their own 
hands, but gave it on a solemn trust, and coupled the grant of it with 
this express condition that it should never be used in any way but one ; 
that is, by means of ordained and established courts. Any person, 
therefore, who undertakes to exercise judicial power in any other way 
not only violates the law of the land, but he treacherously tramples 
upon the most important part of that sacred covenant which holds 
these States together. 

May it please your honors, you know, and I know, and everybody 
else knows, that it was the intention of the men who founded this 
Eepublic to put the life, liberty, and property of every person in it 
under the protection of a regular and permanent judiciary, separate, 
apart, distinct, from all other branches of the Government, whose sole 
and exclusive business it should be to distribute justice among the 
people according to the wants of each individual. It was to consist of 
courts, always open to the complaint of the injured, and always ready 
to hear criminal accusations when founded upon probable cause ; sur- 



51G FORENSIC. 

rounded with all the machinery necessary for the investigation of 
truth, and clothed with sufficient power to carry their decrees into 
execution. In these courts it was expected that judges would sit who 
would be upright, honest, and sober men, learned in the laws of their 
country, and lovers of justice from the habitual practice of that vir- 
tue ; independent, because their salaries could not be reduced ; and 
free from party passion, because their tenure of office was for life. Al- 
though this would place them above the clamors of the mere mob and 
beyond the reach of Executive influence, it was not intended that 
they should be wholly irresponsible. For any willful or corrupt vio- 
lation of their duty, they are liable to be impeached ; and they can 
not escape the control of an enlightened public opinion, for they must 
sit with open doors, listen to full discussion, and give satisfactory 
reasons for the judgments they pronounce. In ordinary tranquil 
times the citizen might feel himself safe under a judicial system so 
organized. 

But our wise forefathers knew that tranquillity was not to be 
always anticipated in a republic ; the spirit of a free people is often 
turbulent. They expected that strife would rise between classes and 
sections, and even civil war might come, and they supposed that in 
such times judges themselves might not be safely trusted in criminal 
cases — especially in prosecutions for political offenses, where the whole 
power of the Executive is arrayed against the accused party. All his- 
tory proves that public officers of any Government, when they are 
engaged in a severe struggle to retain their places, become bitter and 
ferocious, and hate those who oppose them, even in the most legiti- 
mate way, with a rancor which they never exhibit toward actual crime. 
This kind of malignity vents itself in prosecutions for political of- 
fenses, sedition, conspiracy, libel, and treason, and the charges are 
generally founded upon the information of hireling spies and common 
delators, who make merchandise of their oaths, and trade in the blood 
of their fellow-men. During the civil commotions in England, which 
lasted from the beginning of the reign of Charles I to the revolution 
of 1G88, the best men and the purest patriots that ever lived fell by 
the hand of the public executioner. Judges were made the instru- 
ments for inflicting the most merciless sentences on men the latchet 
of whose shoes the ministers that prosecuted them were not worthy to 
stoop down and unloose. Let me say here, that nothing has occurred 
in the history of this country to justify the doubt of judicial integrity 
which our forefathers seem to have felt. On the contrary, the highest 
compliment that has ever been paid to the American bench is em- 
bodied in this simple fact : that if the Executive officers of this Gov- 
ernment have ever desired to take away the life or the liberty of a 
citizen contrary to law, they have not come into the courts to get it 
done ; they have gone outside of the courts, and stepped over the 



FORENSIC. 517 

Constitution, and created their own tribunals, composed of men whose 
gross ignorance and supple subservience could always be relied on 
for those base uses to which no judge would ever lend himself. But 
the framers of the Constitution could act only upon the experience of 
that country whose history they knew most about, and there they saw 
the brutal ferocity of Jeffreys and Scroggs, the timidity of Guilford, 
and the base venality of such men as Saunders and Wright. It 
seemed necessary, therefore, not only to make tlie judiciary as perfect 
as possible, but to give the citizen yet another shield against the 
wrath and malice of his Government. To that end tlicy could 
think of no better provision than a public trial before an impartial 
jury. 

I do not assert that the jury trial is an infallible mode of ascer- 
taining truth. Like everything human, it has its imperfections. I 
only say that it is the best protection for innocence, and the surest 
mode of punishing guilt, that has yet been discovered. It has borne 
the test of a longer experience, and borne it better tlian any other 
legal institution that ever existed among men. England owes more 
of her freedom, her grandeur, and her prosperity to that, tlian to all 
other causes put together. It has had the approbation not only of 
those who lived under it, but of great thinkers who looked at it calm- 
ly from a distance, and judged it impartially : Montesquieu and De 
Tocqueville speak of it with an admiration as rapturous as Coke and 
Blackstone. Within the present century, the most enlightened states 
of Continental Europe have transplanted it into their countries ; and 
no people ever adopted it once and were afterward willing to part 
with it. It was only in 1830 that an interference with it in Belgium 
provoked a successful insurrection which permanently divided one 
kingdom into two. In the same year, the revolution of the Barricades 
gave the right of trial by jury to every Frenchman. 

Those colonists of this country who came from the British Islands 
brought this institution with them, and they regarded it as the most 
precious part of their inheritance. The immigrants from other places, 
where trial by jury did not exist, became equally attached to it as soon 
as they understood what it was. There was no subject upon which 
all the inhabitants of the country were more perfectly unanimous 
than they were in their determination to maintain this great right 
unimpaired. An attempt was made to set it aside, and substitute 
military trials in its place, by Lord Dunmore in Virginia, and Gen- 
eral Gage in Massachusetts, accompanied with the excuse, which has 
been repeated so often in late days, namely, that rebellion had made 
it necessary ; but it excited intense popular anger, and every colony, 
from New Hampshire to Georgia, made common cause with the two 
whose rights had been especially invaded. Subsequently the Conti- 
nental Congress thundered it into the ear of the world, as an unen- 



518 FORENSIC. 

durable outrage, sufficient to justify universal insurrection against the 
authority of the Government which had allowed it to be done. 

If the men who fought out our revolutionary contest, when they 
came to frame a government for themselves and their posterity, had 
failed to insert a provision making the trial by jury perpetual and 
universal, they would have covered themselves all over with infamy 
as with a garment ; for they would have proved themselves basely 
recreant to the principles of that very liberty of which they professed 
to be the special champions. But they were guilty of no such treach- 
ery. They not only took care of the trial by jury, but they regulated 
every step to be taken in a criminal trial. They knew very well that 
no people could be free under a government which had the power to 
punish without restraint. Hamilton expressed in the "Federalist" 
the universal sentiment of his time when he said that the arbitrary 
power of conviction and punishment for j)retended offenses had been 
the great engine of despotism in all ages and all countries. The ex- 
istence of such a power is utterly incompatible with freedom. The 
difference between a master and his slave consists only in this : that 
the master holds the lash in his hands, and he may use it without 
legal restraint, while the naked back of the slave is bound to take 
whatever is laid on it. 

But our fathers were not absurd enough to put unlimited power in 
the hands of the ruler, and take away the protection of law from the 
rights of individuals. It was not thus that they meant "to secure 
the blessings of liberty to themselves and their posterity." They de- 
termined that not one drop of the blood which had been shed on the 
other side of the Atlantic, during seven centuries of contest with arbi- 
trary power, should sink into the ground ; but the fruits of every 
popular victory should be garnered up in this new Government. Of 
all the great rights already won they threw not an atom away. They 
went over Magyia Cliarta, the Petition of Rights, the Bill of Rights, 
and the rules of the common laio, and whatever was found there to 
favor individual liberty they carefully inserted in their own system, 
improved by clearer expression, strengthened by heavier sanctions, and 
extended by a more universal application. They put all those pro- 
visions into the organic law, so that neither tyranny in the Executive 
nor party rage in the Legislature could change them without destroy- 
ing the Government itself. 

Look for a moment at the jjarticulars, and see how carefully every- 
thing connected with the administration of punitive justice is guarded. 

1. No ex post facto law shall be passed. No man shall be answer- 
able criminally for any act which was not defined and made punishable 
as a crime by some law in force at the time when the act was done. 

3. For an act which is criminal he can not be arrested without a 
judicial warrant founded on proof of probable cause. He shall not be 



FORENSIC. 619 

kidnapped and shut up on the mere report of some base spy, who gath- 
ers the materials of a false accusation by crawling into his house and 
listening at the key-hole of his chamber-door. 

3. He shall not be compelled to testify against himself. He may 
be examined before he is committed, and tell his own story if he 
pleases ; but the rack shall be put out of sight, and even his conscience 
shall not be tortured ; nor shall his unpublished papers be used 
against him, as was done most wrongfully in the case of Algernon 
Sidney. 

4. He shall be entitled to a speedy trial ; not kept in prison for 
an indefinite time without the opportunity of vindicating his inno- 
cence. 

5. He shall be informed of the accusation, its nature, and grounds. 
The public accuser must put the charge into the form of a legal in- 
dictment, so that the party can meet it full in the face. 

6. Even to the indictment he need not answer unless a grand jury, 
after hearing the evidence, shall say upon their oaths that they be- 
lieve it to be true. 

7. Then comes the trial, and it must be before a regular court, of 
competent jurisdiction, ordained and established for the State and 
district in which the crime was committed ; and this shall not be 
evaded by a legislative change in the district after tlie crime is alleged 
to be done. 

8. His guilt or innocence shall be determined by an impartial jury. 
These English words are to be understood in their English sense, and 
they mean that the jurors shall be fairly selected by a sworn oflBcer 
from among the peers of the party, residing within the local jurisdic- 
tion of the court. When they are called into the box he can purge 
the panel of all dishonesty, prejudice, personal enmity, and ignorance, 
by a certain number of peremptory challenges, and as many more 
challenges as he can sustain by showing reasonable cause. 

9. The trial shall be public and open, that no underhand advan- 
tage may be taken. The party shall be confronted with the witnesses 
against him, have compulsory process for his own witnesses, and be 
entitled to the assistance of counsel in his defense. 

10. After the evidence is heard and discussed, unless the jury shall, 
upon their oaths, unanimously agree to surrender him up into the 
hands of the court as a guilty man, not a hair of his head can be 
touched by way of punishment. 

11. After a verdict of guilty he is still protected. No cruel or 
unusual punishment shall be inflicted, nor any punishment at all, 
except what is annexed by the law to his offense. It can not be 
doubted for a moment that, if a person convicted of an offense not 
capital were to be hung on the order of a judge, such judge would be 
guilty of murder, as plainly as if he should come down from the bench, 



620 FORENSIC. 

tuck up the sleeves of his gown, and let out the prisoner's blood with 
his own hand. 

13. After all is over, the law continues to spread its guardianship 
around him. Whether he is acquitted or condemned, he shall never 
again be molested for that offense. No man shall be twice put in 
jeopardy of life or limb for the same cause. 

These rules apply to all criminal prosecutions. But, in addition 
to these, certain special regulations were required for treason — the one 
great political charge under which more innocent men have fallen 
than any other. A tyrannical government calls everybody a traitor 
who shows the least unwillingness to be a slave. The party in power 
never fails, when it can, to stretch the law on that subject by con- 
struction, so as to cover its honest and conscientious opponents. In 
the absence of a constitutional provision, it was justly feared that stat- 
utes might be passed which would put the lives of the most patriotic 
citizens at the mercy of the basest minions that skulk about under the 
pay of the Executive. Therefore a definition of treason was given in 
the fundamental law, and the legislative authority could not enlarge 
it to serve the purpose of partisan malice. The nature and amount 
of evidence required to prove the crime was also prescribed, so that 
prejudice and enmity might have no share in the conviction. And, 
lastly, the punishment was so limited that the property of the party 
could not be confiscated, and used to reward the agents of his perse- 
cutors, or strip his family of their subsistence. 

If these provisions exist in full force, unchangeable and irrepeal- 
able, then we are not hereditary bondsmen. Every citizen may safely 
pursue his lawful calling in the open day ; and at night, if he is con- 
scious of innocence, he may lie down in security and sleep the sound 
sleep of a freeman. 

I say they are in force, and they will remain in force. "We have 
not surrendered them, and we never will. If the worst comes to the 
worst we will look to the living God for his help, and defend our 
rights and the rights of our children to the last extremity. Those 
men who think we can be subjected and abjected to the condition of 
mere slaves are wholly mistaken. The great race to which we belong 
has not degenerated so fatally. 

But how am I to prove the existence of these rights ? I do not 
propose to do it by a long chain of legal argumentation, nor by the 
production of numerous books with the leaves dog-eared and the 
pages marked. If it depended upon judicial precedents, I think I 
could produce as many as might be necessary. If I claimed this free- 
dom, under any kind of prescription, I could prove a good long pos- 
session in ourselves and those under whom we claim it. I might begin 
with Tacitus and show how the contest arose in the forests of Germany 
more than two thousand years ago ; how the rough virtues and sound 



FORENSIC. 521 

common sense of that people established the right of trial by Jury, and 
thus started on a career which has made their posterity the foremost 
race that ever lived in all the tide of time. The Saxons carried it to 
England, and were ever ready to defend it with their blood. It was 
crushed out by the Danish invasion ; and all that they suffered of 
tyranny and ojipression during the period of their subjugation resulted 
from the want of trial by jury. If that had been conceded to them, 
the reaction would not have taken place which drove back the Danes 
to their frozen homes in the north. But those ruffian sea-kings could 
not understand that, and the reaction came. Alfred, the greatest of 
revolutionary heroes, and the wisest monarch that ever sat on a throne, 
made the first use of his power, after the Saxons restored it, to re-es- 
tablish their ancient laws. He had promised them that he would, and 
he was true to them, because they had been true to him. But it was 
not easily done ; the courts were opposed to it, for it limited their 
power — a kind of power that everybody covets — the power to punish 
without regard to law. He was obliged to hang forty-four judges in 
one year for refusing to give his subjects a trial by jury. When the 
historian says that he hung them, it is not meant that he put them to 
death without a trial. He had them impeached before the grand 
council of the nation, the Wittenagemote, the parliament of that 
time. During the subsequent period of Saxon domination no man on 
English soil was powerful enough to refuse a legal trial to the meanest 
peasant. If any minister, or any king, in war or in peace, had dared 
to punish a freeman by a tribunal of his own appointment, he would 
have roused the wrath of the whole population ; all orders of society 
would have resisted it ; lord and vassal, knight and squire, priest and 
penitent, bocman and socman, master and thrall, copy-holder and vil- 
lein, would have risen in one mass and burned the offender to death in 
his castle, or followed him in his flight and torn him to atoms. It 
was again trampled down by the Norman conquerors ; but the evils 
resulting from the want of it united all classes in the effort which com- 
pelled King John to restore it by the Great Charter. Everybody is 
familiar with the struggles which the English jDeople, during many 
generations, made for their rights with the Plantagenets, the Tudors, 
and the Stuarts, and which ended finally in the revolution of 1688, 
when the liberties of England were placed upon an impregnable basis 
by the Bill of Eights. 

Many times the attempt was made to stretch the royal authority 
far enough to justify military trials ; but it never had more than tem- 
porary success. Five hundred years ago Edward II closed up a great 
rebellion by taking the life of its leader, the Earl of Lancaster, 
after trying him before a military court. Eight years later that 
same king, together with his lords and commons in Parliament as- 
sembled, acknowledged with shame and sorrow that the execution of 



522 FORENSIC. 

Lancaster was a mere murder, because the courts were open and he 
might have had a legal trial. Queen Elizabeth, for sundry reasons 
affecting the safety of the State, ordered that certain offenders not of 
her army should be tried according to the law martial. But she heard 
the storm of popular vengeance rising, and, haughty, imperious, self- 
willed as she was, she yielded the point ; for she knew that upon that 
subject the English people would never consent to be trifled with. 
Strafford, as Lord-Lieutenant of Ireland, tried the Viscount Stormont 
before a military commission. When impeached for it, he pleaded in 
vain that Ireland was in a state of insurrection, that Stormont was a 
traitor, and the army would be undone if it could not defend itself 
without appealing to the civil courts. The Parliament was deaf ; the 
king himself could not save him ; he was condemned to suffer death as 
a traitor and a murderer. Charles I issued commissions to divers offi- 
cers for the trial of his enemies according to the course of military 
law. If rebellion ever was an excuse for such an act, he could surely 
have pleaded it ; for there was scarcely a spot in his kingdom, from 
sea to sea, where the royal authority was not disputed by somebody. 
Yet the Parliament demanded in their petition of right, and the 
king was obliged to concede, that all his commissions were illegal. 
James II claimed the right to suspend the operation of the penal laws 
— a power which the courts denied ; but the experience of his prede- 
cessors taught him that he could not suspend any man's right to a 
trial. He could easily have convicted the seven bishops of any offense 
he saw fit to charge them with, if he could have selected their judges 
from among the mercenary creatures to whom he had given commands 
in his army. But this he dared not do. He was obliged to send 
the bishops to a jury and endure the mortification of seeing them ac- 
quitted. He, too, might have had rebellion for an excuse, if rebellion 
be an excuse. The conspiracy was already ripe, which a few months af- 
terward made him an exile and an outcast ; he had reason to believe 
that the Prince of Orange was making his preparations on the other 
side of the channel to invade the kingdom, where thousands burned to 
join him ; nay, he pronounced the bishops guilty of rebellion by the 
very act for which he arrested them. He had raised an army to meet 
the rebellion, and he was on Hounslow Heath, reviewing the troops or- 
ganized for that purpose, when he heard the great shout of joy that 
went up from Westminster Hall, was echoed back from Templar Bar, 
spread down the city and over the Thames, and rose from every vessel 
on the river — the simultaneous shout of two hundred thousand men 
for the triumph of justice and law. 

If it were worth the time, I might detain you by showing how this 
subject Avas treated by the French Court of Cassation, in Geoffrey's 
case, under the Constitution of 1830, when a military judgment was 
unhesitatingly pronounced to be void, though ordered by the king. 



FORENSIC, 523 

after a proclamation declaring Paris in a state of siege. Fas est ah 
hoste doceri : we may lawfully learn something from our enemies — at 
all events, we should blush at the thought of not being equal on such 
a subject to the courts of Virginia, Georgia, Mississippi, and Texas, 
whose decisions, my colleague, General Garfield, has read and com- 
mented on. 

The truth is, that no authority exists anywhere in the world for 
the doctrine of the Attorney-General. No judge or jurist, no statesman 
or parliamentary orator, on this or the other side of the water, sus- 
tains him. Every elementary writer from Coke to Wharton is against 
him. All military authors, who profess to know the duties of their 
profession, admit themselves to be under, not above, the laws. No 
book can be found in any library to justify the assertion that mili- 
tary tribunals may try a citizen at a place where the courts are open. 
When I say no book, I mean, of course, no book of acknowledged au- 
thority. I do not deny that hireling clergymen have often been 
found to disgrace the pulpit by trying to prove the divine right of 
kings and other rulers to govern as they please. It is true, also, that 
court sycophants and party hacks have many times written pamphlets, 
and perhaps large volumes, to show that those whom they serve should 
be allowed to work out their bloody will upon the people. No abuse 
of power is too flagrant to find its defenders among such servile creat- 
ures. Those butchers' dogs, that feed upon garbage and fatten upon 
the offal of the shambles, are always ready to bark at whatever inter- 
feres with the trade of their master. 

But this case does not depend on authority. It is rather a question 
of fact than of law. 

I prove my right to a trial by jury, just as I would prove my title 
to an estate if I held in my hand a solemn deed conveying it to me, 
coupled with undeniable evidence of long and undisturbed possession 
under and according to the deed. There is the charter by which we 
claim to hold it. It is called the Constitution of the United States. 
It is signed by the sacred name of George Washington, and by thirty- 
nine other names, only less illustrious than his. They represented 
every independent State then upon this continent, and each State af- 
terward ratified their work by a separate convention of its own people. 
Every State that subsequently came in acknowledged that this was 
the great standard by which their rights were to be measured. Every 
man that has ever beld office in this country, from that time to this, 
has taken an oath that ho would support and sustain it through good 
report and through evil. The Attorney-General himself became a 
])arty to the instrument when he laid his hand upon the Gospel of 
God and solemnly swore that he would give to me and every other cit- 
izen the full benefit of all it contains. 

What does it contain ? This among other things : 
34 



524 • FORENSIC. 

'" The trial of all crimes except in cases of impeachment shall be 
by jury." 

Again : " No person shall be held to answer for a capital or other- 
wise infamous crime unless on a presentment or indictment of a grand 
jury, except in cases arising in the land and naval forces, or in the 
militia when in actual service in time of war or public danger ; nor 
shall any person be subject for the same offense to be twice put in 
jeopardy of life or limb, nor be compelled in any criminal case to be a 
witness against himself, nor be deprived of life, liberty, or property 
without due process of law ; nor shall priyate property be taken for 
public use without just compensation." 

This is not all ; another article declares that " in all criminal pros- 
ecutions the accused shall enjoy the right to a speedy and public trial, 
by an impartial jury of the State and district wherein the crime shall 
have been committed, which district shall have been previously ascer- 
tained by law ; and to be informed of the nature and cause of the 
accusation ; to be confronted with the witnesses against him ; to have 
compulsory process for the witnesses in his favor, and to have the 
assistance of counsel for his defense." 

Is there any ambiguity there ? If that does not signify that a jury 
trial shall be the exclusive and only means of ascertaining guilt in 
criminal cases, then I demand to know what words or what collocation 
of words in the English language would have that effect ? Does this 
mean that a fair, open, speedy, public trial by an impartial jury shall 
be given only to those persons against whom no sj)ecial grudge is felt 
by the Attorney-General, or the Judge- Advocate, or the head of a de- 
partment ? Shall this inestimable privilege be extended only to men 
whom the administration does not care to convict ? Is it confined to 
vulgar criminals, who commit ordinary crimes against society, and 
shall it be denied to men who are accused of such offenses as those for 
which Sidney and Russell were beheaded, and Alice Lisle was hung, 
and Elizabeth Gaunt was burned alive, and John Bunyan was im- 
prisoned fourteen years, and Baxter was whipped at the cart's-tail, and 
Prynn had his ears cut off ? No ; the words of the Constitution are 
all-embracing — 

*' As broad and general as the casing air." 

The trial of ALL crimes shall be by jury. ALL persons accused 
shall enjoy that privilege — and NO person shall be held to answer in 
any other way. 

That would be sufficient without more. But there is another con- 
sideration which gives it tenfold power. It is a universal rule of con- 
struction, that general words in any instrument, though they may be 
weakened by enumeration, are always strengthened by exceptions. 
Here is no attempt to enumerate the particular cases in which men 



FORENSIC. 525 

charged with criminal offenses shall be entitled to a jury trial. It is 
simply declared that all shall have it. But that is coupled with a 
statement of two specific exceptions : cases of impeachment, and 
cases arising in the land or naval forces. These exceptions strengthen 
the application of the general rule to all other cases. "Where the law- 
giver himself has declared when and in what circumstances you may 
depart from the general rule, you shall not presume to leave that on- 
ward path for other reasons, and make different exceptions. To ex- 
ceptions, the maxim is always applicable, that expressio unius exclusio 
est alterius. 

But we are answered that the judgment under consideration was 
pronounced in time of war, and it is therefore, at least morally, ex- 
cusable. There may, or there may not be something in that. I admit 
that the merits or demerits of any particular act, whether it involve a 
violation of the Constitution or not, depend upon the motives that 
prompted it, the time, the occasion, and all the attending circum- 
stances. When the people of this country come to decide upon the acts 
of their rulers, they will take all these things into consideration. But 
that presents the political aspect of the case, with which, I trust, we 
have nothing to do here. I decline to discuss it. I would only say, 
in order to prevent misapprehension, that I think it is precisely in a 
time of war and civil commotion that we should double the guards 
upon the Constitution. If the sanitary regulations which defend the 
health of a city are ever to be relaxed, it ought certainly not to be 
done when pestilence is abroad. When the Mississippi shrinks within 
its natural channel, and creeps lazily along the bottom, the inhabit- 
ants of the adjoining shore have no need of a dike to save them from 
inundation. But when the booming flood comes down from above, 
and swells into a volume which rises high above the plain on either 
side, then a crevasse in the levee becomes a most serious thing. So 
in peaceable and quiet times our legal rights are in little danger of 
being overborne ; but when the wave of arbitrary power lashes itself 
into violence and rage, and goes surging up against the barriers which 
were made to confine it, then we need the whole strength of an un- 
broken Constitution to save us from destruction. But this is a ques- 
tion which properly belongs to the jurisdiction of the stump and the 
newspaper. 

There is another quasi-^oWiicdl argument — necessity. If the law 
was violated because it could not be obeyed, that might be an excuse. 
But no absolute compulsion is pretended here. These commissioners 
acted, at most, under what they regarded as a moral necessity. The 
choice was left them to obey the law or disobey it. The disobedience 
was only necessary as means to an end which they thought desirable ; 
and now they assert that though these means are unlawful and wrong, 
they are made right, because without them the object could not be 



526 FORENSIC. 

accomplished ; iu other words, the end justifies the means. There 
you have a rule of conduct denounced by all law, human and divine, 
as being pernicious in policy and false in morals. See how it applies 
to this case. Here were three men whom it was desirable . to remove 
out of this world, but there was no proof on which any court would 
take their lives ; therefore it was necessary, and being necessary it was 
right and proper, to create an illegal tribunal which would put them 
to death without proof. By the same mode of reasoning you can 
prove it equally right to poison them in their food, or stab them in 
their sleep. 

Nothing that the worst men ever propounded has produced so 
much oppression, misgovernment, and suffering as this pretense of 
State necessity. A great authority calls it *'the tyrant's devilish 
plea" ; and the common honesty of all mankind has branded it with 
everlasting infamy. 

Of course, it is mere absurdity to say that these relators were neces- 
sarily deprived of their right to a fair and legal trial, for the record 
shoAvs that a court of competent jurisdiction was sitting at the very 
time and in the same town, where justice would have been done with- 
out sale, denial, or delay. But concede, for the argument's sake, that 
a trial by jury was wholly impossible ; admit that there was an abso- 
lute, overwhelming, imperious necessity operating so as literally to 
compel every act which the commissioners did : would that give their 
sentence of death the validity and force of a legal judgment pro- 
nounced by an ordained and established court ? The question answers 
itself. This trial was a violation of law, and no necessity could be 
more than a mere excuse for those who committed it. If the commis- 
sioners were on trial for murder or conspiracy to murder, they might 
plead necessity if the fact were true, just as they would plead insanity 
or anything else to show that their guilt was not willful. But we are 
now considering the legal effect of their decision, and that depends on 
their legal authority to make it. They had no such authority ; they 
usurped a jurisdiction which the law not only did not give them, but 
ex})ressly forbade them to exercise, and it follows that their act is void, 
whatever may have been the real or supposed excuse for it. 

If these commissioners, instead of aiming at the life and liberty of 
the relators, had attempted to deprive them of their property by a sen- 
tence of confiscation, would any court in Christendom declare that 
such a sentence divested the title ? Or would a person claiming under 
the sentence make his right any better by showing that the illegal as- 
sumption of jurisdiction was accompanied by some excuse which might 
save the commissioners from a criminal prosecution ? 

Let me illustrate still further. Suppose you, the judges of this 
court, to be surrounded in the hall where you are sitting by a body of 
armed insurgents, and compelled by main force to pronounce sentence 



FORENSIC. 527 

of death upon the President of the United States for some act of his 
upon which you have no legal authority to adjudicate. There would 
be a yalid sentence if necessity alone could create jurisdiction. But 
could the President be legally executed under it ? No ; the compul- 
sion under which you acted would be a good defense for you against 
an imjieachment or an indictment for murder, but it would add noth- 
ing to the validity of a judgment which the law forbade you to give. 

That a necessity for violating the law is nothing more than a mere 
excuse to the perpetrator, and does not in any legal sense change the 
quality of the act itself in its operation upon other parties, is a propo- 
sition too plain on original principles to need the aid of authority. I 
do not see how any man of common sense is to stand up and dispute 
it. But there is decisive authority upon the point. In 1815, at New 
Orleans, General Jackson took upon himself the command of every 
person in the city, suspended the functions of all the civil authorities, 
and made his own will for a time the only rule of conduct. It was 
believed to be absolutely necessary. Judges, officers of the city cor- 
poration, and members of the State Legislature insisted on it as the 
only way to save the "booty and beauty" of the place from the un- 
speakable outrages committed at Badajos and St. Sebastian by the very 
same troops then marching to the attack. Jackson used the power 
thus taken by him moderately, sparingly, benignly, and only for the 
purpose of preventing mutiny in his camp. A single mutineer was 
restrained by a short confinement, and another was sent four miles up 
the river. But, after he had saved the city, and the danger was all 
over, he stood before the court to be tried by the law ; his conduct was 
decided to be illegal by the same judge who had declared it to be nec- 
essary, and he paid the penalty without a murmur. The Supreme 
Court of Louisiana, in Johnson vs. Duncan, decided that everything 
done during the siege in pursuance of martial rule, but in conflict with 
the law of the land, was void and of none effect, without reference to 
the circumstances which made it necessary. Long afterward the fine 
imposed upon Jackson was refunded, because his friends, while they 
admitted him to have violated the law, insisted that the necessity 
which drove him to it ought to have saved him from the punishment 
due only to a willful offender. 

The learned counsel on the other side will not assert that there 
was war at Indianapolis in 1864, for they have read " Coke's Institute," 
and Judge Crier's opinion in the ^^rt^e cases, and of course they know 
it to be a settled rule that war can not be said to exist where the civil 
courts are open. They will not set up the absurd plea of necessity, 
for they are well aware that it would not be true in point of fact. 
They will hardly take the ground that any kind of necessity could 
give legal validity to that which the law forbids. 

This, therefore, must be their position : That although there was 



528 FORENSIC. 

no war at the place where this commission sat, and no actual necessity 
for it, yet if there was a war anywhere else, to which the United States 
were a party, the technical effect of such war was to take the jurisdic- 
tion away from the civil courts and transfer it to army officers. 

Geneeal Butlee. — We do not take that position. 

Mr. Black. — Then they can take no ground at all, for nothing 
else is left. I do not wonder to see them recoil from their own doc- 
trine when its nakedness is held up to their eyes. But they must 
stand upon that or give up their cause. They may not state their 
proposition precisely as I state it ; that is too plain a way of putting 
it. But, in substance, it is their doctrine — has been the doctrine of 
the Attorney-General's office ever since the advent of the present in- 
cumbent — and is the doctrine of their brief, printed and filed in this 
case. What else can they say ? They will admit that the Constitu- 
tion is not altogether without a meaning ; that at a time of universal 
peace it imposes some kind of obligation upon those who swear to sup- 
port it. If no war existed they would not deny the exclusive jurisdic- 
tion of the civil courts in criminal cases. How, then, did the military 
get jurisdiction in Indiana ? 

All men who hold the Attorney-General's opinion to be true, an- 
swer the question I have put by saying that military jurisdiction comes 
from the mere existence of war ; and it comes in Indiana only as the 
legal result of a war which is going on in Mississippi, Tennessee, or 
South Carolina. The Constitution is repealed, or its operation sus- 
pended, in one State because there is war in another. The courts are 
open, the organization of society is intact, the judges are on the bench, 
and their process is not impeded ; but their jurisdiction is gone. Why ? 
Because, say our opponents, war exists, and the silent, legal, technical 
operation of that fact is to deprive all American citizens of their right 
to a fair trial. 

That class of jurists and statesmen, who hold that the trial by jury 
is lost to the citizen during the existence of war, carry out their doc- 
trine theoretically and practically to its ultimate consequences. The 
right of trial by jury being gone, all other rights are gone with it ; 
therefore a man may be -arrested without an accusation, and kept in 
prison during the pleasure of his captors ; his papers may be searched 
without a warrant ; his property may be confiscated behind his back, 
and he has no earthly means of redress. Nay, an attempt to get a just 
remedy is construed as a new crime. He dare not even complain, for 
the right of free speech is gone with the rest of his rights. If you 
sanction that doctrine, what is to be the consequence ? I do not speak 
of what is past and gone ; but in case of a future war, what results will 
follow from your decision indorsing the Attorney-General's views ? 
They are very obvious. At the instant when the war begins, our whole 
system of legal government will tumble into ruin, and if we are not 



FORENSIC. 529 

all robbed, and kidnai:)pod, and hanged, and drawn, and quartered, 
we will owe our immunity, not to the Constitution and laws, but to 
the mere mercy or policy of those persons who may then hajipen to 
control the organized physical force of the country. 

This certainly puts us in a most precarious condition ; we must have 
war about half the time, do what we may to avoid it. The President 
or Congress can wantonly provoke a war whenever it suits the purpose 
of either to do so ; and they can keep it going as long as they please, 
even after the actual conflict of arms is over. When Peace woos 
them they can ignore her existence ; and thus they can make war a 
chronic condition of the country, and the slavery of the people per- 
petual, Kay, we are at tlie mercy of any foreign potentate who may 
envy us the possession of those liberties which we boast of so much ; 
he can shatter our Constitution without striking a single blow or bring- 
ing a gun to bear upon us. A simple declaration of hostilities is more 
terrible to us than an army with banners. 

To me this seems the wildest delusion that ever took possession of 
a human brain. If there be one principle of political ethics more uni- 
versally acknowledged than another, it is that war, and especially civil 
war, can be justified only when it is undertaken to vindicate and up- 
hold the legal and constitutional rights of the people ; not to trample 
them down. He who carries on a system of wholesale slaughter for 
any other purpose, must stand without excuse before God or man. 
In a time of war, more than at any other time, public liberty is in the 
hands of the public officers. And she is there in double trust : first, 
as they are citizens, and therefore bound to defend her by the com- 
mon obligation of all citizens ; and, next, as they are her special 
guardians — 

""Who should against her murderers shut the door, 
Not bear the knife themselves." 

The opposing argument, when turned into plain English, means this, 
and this only : that when the Constitution is attacked upon one side, 
its official guardians may assail it upon the other ; when rebellion 
strikes it in the face, they may take advantage of the blindness, pro- 
duced by the blow, to sneak behind it and stab it in the back. 

The convention when it framed the Constitution, and the people 
when they adopted it, could have had no thought like that. If they 
had supposed that it would operate only while perfect peace continued, 
they certainly would have given us some other rule to go by in time 
of war ; they would not liave left us to wander about in a howling 
wilderness of anarchy, without a lamp to our feet, or a guide to our 
path. Another thing proves their actual intent still more strikingly. 
They required that every man in any kind of public employment, 
State or national, civil or military, should swear, without reserve or 



530 FOREiXSIC. 

qualification, that he would support the Constitution. Surely our an- 
cestors had too much regard for the moral and religious welfare of 
their posterity to impose upon them an oath like that, if thev intended 
and expected it to be broken half the time. The oath of an officer to 
support the Constitution is as simple as that of a witness to tell the 
truth m a court of justice. What would you think of a witness who 
should attempt to justify perjury upon the ground that he had testi- 
hed when civil war was raging, and he thought that by swearing to a 
lie he might promote some public or private object connected with the 
strife ? 

No, no, the great men who made this country what it is— the heroes 
who won her independence, and the statesmen who settled her institu- 
tions-had no such notions in their minds. Washington deserved the 
lofty praise bestowed upon him by the President of Congress when he 
resigned his commission— that he had always regarded the rights of 
the civil authority through all changes and through all disasters. When 
his duty as President afterward required him to arm the public force 
to suppress a rebellion in Western Pennsylvania, he never thought that 
the Constitution was abolished, by virtue of that fact, in New Jersey 
or Maryland, or Virginia. It would have been a dangerous expe/i- 
ment for an adviser of his at that time, or at any time, to propose that 
he should deny a citizen his right to be tried by a jury, and substitute 
m place of it a trial before a tribunal composed of men elected by him- 
self from among his own creatures and dependents. You can well 
imagine how that great heart would have swelled with indignation at 
the bare tliought of such an insulting outrage upon the liberty and law 
ot his country. 

In the war of 1812, the man emphatically called the Father of the 
Constitution was the supreme Executive Magistrate. Talk of perilous 
times! There was the severest trial this Union ever saw. That was no 
half-organized rebellion on the one side of the conflict, to be crushed 
by the hostile millions and unbounded resources of the other The 
existence of the nation was threatened by the most formidable military 
and naval power then upon the face of the earth. Every town upon 
the northern frontier, upon the Atlantic seaboard, and upon the Gulf 
coast was m daily and hourly danger. The enemy had penetrated the 
heart of Ohio. New York, Pennsylvania, and Virginia were all of 
them threatened from the west as well as the east. This Capitol was 
taken, and burned, and pillaged, and every member of the Federal 
Administration was a fugitive before the invading army. Meanwhile 
party sinrit was breaking out into actual treason all over New Eng- 
land Four of those States refused to furnish a man or a dollar even 
for their own defense. Their public authorities were plotting the dis- 
memberment of the Union, and individuals among them were burning 
blue-lights upon the coast as a signal to the enemy's ships. But in 



FORENSIC. 531 

all this storm of disaster, with foreign war in his front, and domestic 
treason on his flank, Madison gave out no sign that he would aid Old 
England and New England to break up this government of laws. On 
the contrary, he and all his supporters, though compassed round with 
darkness and with danger, stood faithfully between the Constitution 
and its enemies — 

"To shield it, and save it, or perish there too." 

The framers of the Constitution and all their contemporaries died 
and were buried ; their children succeeded them and continued on the 
stage of public affairs until they, too — 

"Lived out their lease of life, and paid their breath 
To time and mortal custom " ; 

and a third generation was already far on its way to the grave before 
this monstrous doctrine was conceived or thought of, that public offi- 
cers all over the country might disregard their oaths whenever a war 
or a rebellion was commenced. 

Our friends on the other side are quite conscious that when they 
deny the binding obligation of the Constitution they must put some 
other system of law in its place. Their brief gives notice that, while 
the Constitution, and the acts of Congress, and Magna Charta, and 
the common law, and all the rules of natural justice shall remain 
under foot, they will try American citizens according to the law of 
nations ! But the law of nations takes no notice of the subject. If 
that system did contain a special provision that a government might 
hang one of its own citizens without judge or jury, it would still be 
competent for the American people to say, as they have said, that 
no such thing should ever be done here. That is my answer to the 
law of nations. 

But then they tell us that the laivs of tvar must be treated as para- 
mount. Here they become mysterious. Do they mean that code of 
public law which defines the duties of two belligerent parties to one 
another, and regulates the intercourse of neutrals with both ? If yes, 
then it is simply a recurrence to the law of nations, which has nothing 
on earth to do with the subject. Do they mean that portion of our 
municipal code which defines our duties to the Government in war as 
well as in peace ? Then they are speaking of the Constitution and 
laws, which declare in plain words that the Government owes every 
citizen a fair legal trial, as much as the citizen owes obedience to the 
Government. They are in search of an argument under difficulties. 
When they appeal to international law, it is silent ; and when they in- 
terrogate the law of the land, the answer is an unequivocal contradic- 
tion of their whole theory. 

The Attorney-General tells us that all persons whom he and his 



532 FORENSIC. 

associates choose to denounce for giving aid to the rebellion are to be 
treated as being themselves a part of the rebellion — they are public 
enemies, and therefore they may be punished* without being found 
guilty by a competent court or a jury. This convenient rule would 
outlaw every citizen the moment he is charged with a political offense. 
But political offenders are precisely the class of persons who most need 
the protection of a court and jury, for the prosecutions against them 
are most likely to be unfounded both in fact and in law. Whether 
innocent or guilty, to accuse is to convict them before the ignorant 
and bigoted men who generally sit in military courts. But this court 
decided in the prize cases that all who live in the enemy's territory are 
public enemies, without regard to their personal sentiments or con- 
duct ; and the converse of the proposition is equally true — that all 
who reside inside of our own territory are to be treated as under the 
protection of the law. If they help the enemy they are criminals, but 
they can not be punished without legal conviction. 

You have heard much (and you will hear more very soon) concern- 
ing the natural and inherent right of the Government to defend itself 
without regard to law. This is wholly fallacious. In a despotism the 
autocrat is unrestricted in the means he may use for the defense of 
his authority against the opposition of his own subjects or others ; and 
that is precisely what makes him a despot. But in a limited monarchy 
the prince must confine himself to a legal defense of his government. 
If he goes beyond that, and commits aggressions on the rights of the 
people, he breaks the social compact, releases his subjects from all 
their obligations to him, renders himself liable to be hurled from his 
throne, and dragged to the block or driven into exile. This principle 
was sternly enforced in the cases of Charles I and James II, and we 
have it announced on the highest official authority here that the 
Queen of England can not ring a little bell on her table and cause a 
man by Jier arbitrary order to be arrested under any pretense whatever. 
If that be true there, how much more true must it be here, where we 
have no personal sovereign, and where our only government is the 
Constitution and laws. A violation of law, on pretense of saving such 
a Government as ours, is not self-preservation, but suicide. 

Salus populi suprema lex. Observe it is not salus regis ; the safety 
of Wxe people, not the safety of the ruler, is the supreme law. When 
those who hold the authority of the Government in their hands be- 
have in such manner as to put the liberties and rights of the people in 
jeopardy, the people may rise against them and overthrow them with- 
out regard to that law which requires obedience to them. The maxim 
is revolutionary, and expresses simply the right to resist tyranny with- 
out regard to prescribed forms. It can never be used to stretch the 
powers of government against the people. 

If this Government of ours has no power to defend itself without 



FORENSIC. 633 

violating its own laws, it carries the seeds of destruction in its own 
bosom ; it is a poor, weak, blind, staggering thing, and the sooner it 
tumbles over the better. But it has a most efficient legal mode of 
protecting itself against all possible danger. It is clothed from head 
to foot in a complete panoply of defensive armor. What are the perils 
which may threaten its existence ? I am not able at this moment to 
think of more than these which I am about to mention : foreign inva- 
sion, domestic insurrection, mutiny in the army and navy, corruption 
in the civil administration, and last, but not least, criminal violations 
of its laws committed by individuals among the body of the people. 
Have we not a legal mode of defense against all these ? Yes : military 
force repels invasion and suppresses insurrection ; you preserve disci- 
pline in the army and navy by means of courts-martial ; you preserve 
the purity of the civil administration by impeaching dishonest magis- 
trates ; and crimes are prevented and punished by the regular judicial 
authorities. You are not merely compelled to use these weapons 
against your enemies, because they and they only are justified by the 
law : you ought to use them because they are more efficient than any 
other, and less liable to be abused. 

There is another view of the subject which settles all controversy 
about it. No human being in this country can exercise any kind of 
public authority which is not conferred by law ; and under the United 
States it must be given by the express words of a written statute. 
Whatever is not so given is withheld, and the exercise of it is posi- 
tively prohibited. Courts-martial in the army and navy are author- 
ized ; they are legal institutions ; their jurisdiction is limited, and 
their whole code of procedure is regulated, by act of Congress. Upon 
the civil courts all the jurisdiction they have or can have is bestowed 
by law ; and if one of them goes beyond what is written, its action is 
ultra vires and void. But a military commission is not a court- 
martial, and it is not a civil court. It is not governed by the law 
which is made for either, and has no law of its own. Within the last 
five years we have seen, for the first time, self-constituted tribunals 
not only assuming power which the law did not give them, but 
thrusting aside the regular courts to which the power was exclusively 
given. 

What is the consequence ? This terrible authority is wholly un- 
defined, and its exercise is without any legal control. Undelegated 
power is always unlimited. The field that lies outside of the Consti- 
tution and laws has no boundary. Thierry, the French historian of 
England, says that when the crown and scepter were offered to Crom- 
well he hesitated for several days, and answered, " Do not make me a 
king ; for then my hands will be tied up by the laws which define the 
duties of that office ; but make me protector of the commonwealth, 
and I can do what I please ; no statute restraining and limiting the 



534 FORENSIC. 

royal prerogative will apply to me." So these commissions have no 
legal origin and no legal name by which they are known among the 
children of men ; no law applies to them ; and they exercise all power 
for the paradoxical reason that none belongs to them rightfully. 

Ask the Attorney-General what rules apply to military commissions 
in the exercise of their assumed authority over civilians. Come, Mr. 
Attorney, ''gird up thy loins now like a man ; I will demand of thee, 
and thou shalt declare unto me if thou hast understanding." How is 
a military commission organized ? What shall be the number and 
rank of its members ? What offenses come within its jurisdiction ? 
What is its code of procedure ? How shall witnesses be compelled to 
attend it ? Is it perjury for a witness to swear falsely ? What is the 
function of the Judge-Advocate ? Does he tell the members how they 
must find, or does he only persuade them to convict ? Is he the agent 
of the Government, to command them what evidence they shall admit 
and what sentence they shall pronounce ; or does he always carry his 
point, right or wrong, by the mere force of eloquence and ingenuity ? 
What is the nature of tlieir punishment ? May they confiscate prop- 
erty and levy fines as well as imprison and kill ? In addition to 
strangling their victim, may they also deny him the last consolations 
of religion, and refuse his family the melancholy privilege of giving 
him a decent grave ? 

To none of these questions can the Attorney-General make a reply, 
for there is no law on the subject. He will not attempt to "darken 
counsel by words without knowledge," and therefore, like Job, he can 
only lay his hand upon his mouth and keep silence. 

The power exercised through those military commissions is not 
only unregulated by law, but it is incapable of being so regulated. 
What is it that you claim, Mr. Attorney ? I will give you a defini- 
tion, the correctness of which you will not attempt to gainsay. You 
assert the right of tlie Executive Government, without the intervention 
of the judiciary, to capture, imprison, and kill any person to whom 
that Government or its paid dependents may choose to impute an 
offense. This, in its very essence, is despotic and lawless. It is never 
claimed or tolerated except by those governments which deny the re- 
straints of all law. It has been exercised by the great and small op- 
pressors of mankind ever since the days of Nimrod. It operates in 
different ways ; the tools it uses are not always the same ; it hides its 
hideous features under many disguises ; it assumes every variety of 
form ; 

"It can change shapes with Proteus for advantages, 
And set the murderous Machiavel to school." 

But in all its mutations of outward appearance it is still identical in 
principle, object, and origin. It is always the same great engine of 
despotism which Hamilton described it to be. 



FORENSIC. 535 

Under the old French monarchy the favorite fashion of it was a 
httre de cachet, signed by the king, and this would consign the party 
t3 a loathsome dungeon until he died, forgotten by all the world. An 
imperial uhase will answer the same purpose in Russia. The most 
faithful subject of that amiable autocracy may lie down in the evening 
to dream of his future prosperity, and before daybreak he will find 
himself between two dragoons on his way to the mines of Siberia. In 
Turkey the verbal order of the Sultan or any of his powerful favorites 
will cause a man to be tied up in a sack and cast into the Bosphorus. 
Nero accused Peter and Paul of spreading a ''pestilent superstition," 
which they called the Gospel. He heard their defense in person, and 
sent them to the cross. Afterward he tried the whole Christian 
church in one body, on a charge of setting fire to the city, and he con- 
victed them, though he knew not only that they were innocent, but 
that he himself had committed the crime. The judgment was fol- 
lowed by instant execution ; he let loose the Praetorian guards upon 
men, women, and children, to drown, butcher, and burn them. Herod 
saw fit, for good political reasons, closely affecting the permanence of 
his reign in Judea, to punish cevisan possible traitors in Bethlehem by 
anticipation. This required the death of all the children in that city 
under two years of age. He issued his "general order"; and his 
provost-marshal carried it out with so much alacrity and zeal that in 
one day the whole land was filled with mourning and lamentation. 

Macbeth understood the whole philosophy of the subject. He was 
an unlimited monarch. His power to punish for any offense or for no 
offense at all was as broad as that which the Attorney-General claims 
for himself and his brother officers under the United States. But he 
was more cautious how he used it. He had a dangerous rival, from 
whom he apprehended the most serious peril to the "life of his govern- 
ment." The necessity to get rid of him was plain enough, but he 
could not afford to shock the moral sense of the world by pleading 
political necessity for a murder. He must — 

" Mask the business from the coinmon eye." 

Accordingly he sent for two enterprising gentlemen, whom he took 
into his service upon liberal pay — "made love to their assistance" — 
and got them to deal with the accused party. He acted as his own 
Judge-Advocate. He made a most elegant and stirring speech to per- 
suade his agents that Banquo was their oppressor, and had "held 
them so under fortune " that he ought to die for that alone. When 
they agreed that he was their enemy, then said the king : 

" So is he mine, and though I could 
With harefaced power sweep him from my sight 
And bid my will avouch it ; yet I must not, 



536 FORENSIC. 

For certain friends, who are both his and mine, 
Whose loves I may not drop." 

For these, and "many weighty reasons" besides, he thought it best 
to commit the execution of his design to a subordinate agency. The 
commission thus organized in Banquo's case sat upon him that very 
night, at a convenient place beside the road where it was known he 
would be traveling ; and they did precisely what the Attorney-General 
says the military officers may do in this country — they toolc and hilled 
him, because their employer at the head of the government wanted it 
done, and paid them for doing it out of the public treasury. 

But of all the persons that ever wielded this kind of power, the 
one who went most directly to the purpose and object of it was Lola 
Montez. She reduced it to the elementary principle. In 1848, when 
she was minister and mistress to the King of Bavaria, she dictated all 
the measures of the government. The times were troublesome. All 
over Germany the spirit of rebellion was rising ; everywhere the peo- 
ple wanted to see a first-class revolution, like that which had just ex- 
ploded in France. Many persons in Bavaria disliked to be governed 
so absolutely by a lady of the character which Lola Montez bore, and 
some of them were rash enough to say so. Of course that was treason, 
and she went about to punish it in the simplest of all possible ways. 
She bought herself a pack of English bull-dogs, trained to tear the 
flesh, and mangle the limbs, and lap the life-blood : and Avith these 
dogs at her heels, she marched up and down the streets of Munich 
with a most majestic tread, and with a sense of power which any 
Judge- Advocate in America might envy. When she saw any person 
whom she chose to denounce for "thwarting the government," or 
''using disloyal language," her obedient followers needed but a sign 
to make them spring at the throat of their victim. It gives me un- 
speakable pleasure to tell you the sequel. The people rose in their 
strength, smashed down the whole machinery of oppression, and drove 
out into uttermost shame king, strumpet, dogs, and all. From that 
time to this neither man, woman, nor beast, has dared to worry or kill 
the people of Bavaria. 

All these are but so many different ways of using the arbitrary 
power to punish. The variety is merely in the means which a tyran- 
nical government takes to destroy those whom it is bound to protect. 
Everywhere it is but another construction, on the same principle, of 
that remorseless machine by which despotism wreaks its vengeance on 
those who offend it. In a civilized country it nearly always uses the 
military force, because that is the sharpest, and surest, as well as the 
best-looking instrument that can be found for such a purpose. But 
in none of its forms can it be introduced into this country ; we have 
no room for it ; the ground here is all preoccupied by legal and free 
institutions. 



FORENSIC. 537 

Between the oflBcers who have a power like this, and the people 
who are liable to become its victims, there can be no relation except 
that of master and slave. The master may be kind, and the slave may 
be contented in his bondage ; but the man who can take your life, or 
restrain your liberty, or desj)oil you of your property at his discretion, 
either with his own hands or by means of a hired overseer, owns you 
and he can force you to serve him. All you are and all you have, 
including your wives and children, are his property. 

If my learned and very good friend, the Attorney-General, had 
this right of domination over me, I should not be very much fright- 
ened, for I should expect him to use it as moderately as any man in 
all the world ; but still I should feel the necessity of being very dis- 
creet. He might change in a short time. The thirst for blood is an 
appetite which grows by what it feeds upon. We can not know him 
by present appearances. Robespierre resigned a country judgeship in 
early life because he was too tender-hearted to pronounce sentence of 
death upon a convicted criminal. Caligula passed for a most amiable 
young gentleman before he was clothed with the imperial purple, and 
for about eight months afterward. It was Trajan, I think, who said 
that absolute power would convert any man into a wild beast, what- 
ever was the original benevolence of his nature. If you decide that 
the Attorney-General holds in his own hands, or shares with others, 
the power of life and death over us all, I mean to be very cautious in 
my intercourse with him ; and I warn you, the judges whom I am 
now addressing, to do likewise. Trust not to the gentleness and kind- 
ness which have always marked his behavior heretofore. Keep your 
distance ; be careful how you approach him ; for you know not at 
what moment or by what a trifle you may rouse the sleeping tiger. 
Remember the injunction of Scripture: "Go not near to the man 
who hath power to kill ; and if thou come unto him, see that thou 
make no fault, lest he take away thy life presently ; for thou goest 
among snares and walkest upon the battlements of the city." 

The right of the Executive Government to kill and imprison citi- 
zens for political offenses has not been practically claimed in this 
country, except in cases where commissioned oflBcers of the army were 
the instruments used. Why should it be confined to them ? Why 
should not naval oflficers be permitted to share in it ? What is the 
reason that common soldiers and seamen are excluded from all par- 
ticipation in the business ? No law has bestowed the right upon army 
officers more than upon other persons. If men are to be hung up 
without that legal trial which the Constitution guarantees to them, 
why not employ commissions of clergymen, merchants, manufacturers, 
horse-dealers, butchers, or drovers, to do it ? It will not be pretended 
that military men are better qualified to decide questions of fact or 
law than other classes of people ; for it is known, on the contrary, that 



638 FORENSIC. 

they are, as a general rule, least of all fitted to perform the duties that 
belong to a judge. 

The Attorney-General thinks that a proceeding which takes away 
the lives of citizens without a constitutional trial is a most merciful 
dispensation. His idea of humanity as well as law is embodied in 
the bureau of military justice, with all its dark and bloody machinery. 
For that strange opinion he gives this curious reason : that the duty 
of the commander-in-chief is to kill, and unless he has this bureau and 
these commissions he must "butcher" indiscriminately, without mercy 
or justice. I admit that if the commander-in-chief or any other offi- 
cer of the Government has the power of an Asiatic king, to butcher 
the people at pleasure, he ought to have somebody to aid him in select- 
ing his victims, as well as to do the rough work of strangling and 
shooting. But if my learned friend will only condescend to cast an 
eye upon the Constitution, he will see at once that all the executive 
and military officers are completely relieved by the provision that the 
life of a citizen shall not be taken at all until after legal conviction by 
a court and jury. 

You can not help but see that military commissions, if suffered to 
go on, will be used for most pernicious purposes. I have criticised 
none of their past proceedings, nor made any allusion to their history 
in the last five years. But what can be the meaning of this effort to 
maintain them among us ? Certainly not to punish actual guilt. All 
the ends of true justice are attained by the prompt, speedy, impartial 
trial which the courts are bound to give. Is there any danger that 
crime will be winked upon by the judges ? Does anybody pretend 
that courts and juries have less ability to decide upon facts and law 
than the men who sit in military tribunals ? The counsel in this 
cause will not insult you by even hinting such an opinion. "What 
righteous or just purpose, then, can they serve ? None, whatever. 

But while they are utterly powerless to do even a shadow of good, 
they will be omnipotent to trample upon innocence, to gag the truth, 
to silence patriotism, and crush the liberties of the country. They 
will always be organized to convict, and the conviction will follow the 
accusation as surely as night follows the day. The Government, of 
course, will accuse none before such a commission except those whom 
it predetermines to ruin and destroy. The accuser can choose the 
judges, and will certainly select those who are known to be the most 
ignorant, the most unprincipled, and the most ready to do whatever 
may please the power which gives them pay, promotion, and plunder. 
The willing witness can be found as easily as the superserviceable 
judge. The treacherous spy, and the base informer — those loathsome 
wretches who do their lying by the job — will stock such a market with 
abundant perjury^ for the authorities that employ them will be bound 
to protect as well as reward them. A corrupt and tyrannical govern^ 



FORENSIC. 539 

ment, with such an engine at its command, will shock the world with 
the enormity of its crimes. Plied as it may be by the arts of a malig- 
nant priesthood, and urged on by the madness of a raving crowd, it 
will be worse than the popish plot, or the French revolution — it will 
be a combination of both, with Fouquicr-Tinville on the bench, and 
Titus Gates in the witness's box. You can save us from this horrible 
fate. You alone can ''deliver us from the body of this death." To 
that fearful extent is the destiny of this nation in your hands. 



UNITED STATES vs. BLYEW ET AL. (CIVIL EIGHTS 

BILL). 

IN THE SUPREME COURT OF THE UNITED STATES. 

If your honors please, this is a capital case. The plaintiffs in error 
have been sentenced to death, and that doom is impending over their 
heads at this time. Usually a cause which involves the life of a hu- 
man being has a certain degree of solemnity thrown around it by that 
fact alone. Not much, however, has been said about it here, probably 
because there has been a general impression made of the prisoners' 
guilt. The State of Kentucky accuses them, the United States have 
convicted them, and no counsel employed by themselves are here to 
defend them. I admit nothing against them. No man in a court of 
justice can properly say of another that he is guilty of murder, or any 
other criminal offense, until he has been convicted upon a fair trial 
before an impartial jury and a court of competent jurisdiction ; and 
such a trial these men have not had, if I understand the subject rightly. 

It is the question of conflicting jurisdiction between the State and 
Federal courts which gives interest and dignity to this cause. The 
decision which you may make on it will be felt in its influence on the 
destinies of the country long after you and I and all of us shall have 
mingled with the clods of the valley. Every question of constitu- 
tional law is important when it comes to be decided by the tribunal of 
last resort, from which there is no appeal except to the sword ; and if 
there be any one case that is more important than all others, even of 
that kind, it is one in which the supreme judicial tribunal of the coun- 
try is required to draw the line of demarcation between the powers of 
a great central government on the one hand and the local rights of 
self-government retained to the States and the people on the other. If 
some future Hallam shall write the constitutional history of America, 
I know of nothing more likely than this to occupy a prominent place 
on his pages. I hope and I believe he will be able to say with truth 
that you have been equal to your duty. 

I can not, or rather I toill not, follow my learned friend, the Solid- 
35 



540 FORENSIC. 

tor-General, where he has traveled so far out of the record, as I think 
he did when he indulged in that eloquent denunciation of the State 
of Kentucky. You would suppose, from what he and the Attorney- 
General have said, that the people of Kentucky are engaged in a con- 
stant and barbarous warfare upon the black population. They would 
have you to believe that that State, and the administration of the 
laws in the courts, encourage and protect the whites in the perpetra- 
tion of every outrage on persons of African descent. The Solicitor- 
General distinctly asserted that under the laws of Kentucky a white 
man liad a right to go into a negro church and kill the minister in 
cold blood. The Attorney-General expands this statement, and says 
that every man, woman, and child in the congregation may be killed 
with perfect impunity. They would have you to believe not only 
that these outrages may lawfully be perpetrated, but that they are 
habitual practices. The cannibals of New Zealand are mild and mer- 
ciful in comparison with the Kentuckians, if you take the picture 
of them which the law officers of the United States have painted. 
But all this, you must observe, is mere general abuse, not only with- 
out proof, but without specification. They produce no evidence of 
their assertions, and they mention no instance of any act which, if 
true, would justify them. I take leave to contradict these denuncia- 
tions in all their length and breadth. They are utterly without 
foundation. The people of Kentucky have behaved toward the Afri- 
cans among them with uniform kindness, with perfect justice, and 
with all the magnanimity which ought to mark the conduct of the 
superior race to the inferior and the weaker. The laws may not be 
perfect ; I know of no human code that is : but thus far there has 
been no failure of justice to the negro on that account, much less has 
there ever been any instance of wrong from the partiality of the courts. 
By the whole body of the people, by those who make the laws and by 
those who administer them, crime is regarded as no less a crime when 
negroes have suffered by it than whites. I am instructed to say, and 
I do say with perfect confidence, that in no case has justice been de- 
nied or delayed to any person, white or black, except where it was 
caused by the interference of the Federal authorities. This act of 
Congress, called the *' Civil Eights Bill," has dislocated all the ma- 
chinery of the State courts, and rendered them powerless to perform 
their duty. If they attempt to execute justice, the judges themselves 
are liable to be hunted down as criminals. The jurisdiction of the 
State courts is entirely taken away in every case which affects a negro 
in any way whatever, and yet the officers of the United States come 
into this court, and with their feet on the neck of the prostrate com- 
monwealth, vent curses and maledictions and objurgations upon her 
for not doing justice to the negro ! 

A person standing where I stand might be tempted to follow the 



FORENSIC. 541 

Solicitor-General out of the record, and enunciate some general doc- 
trines not altogether unprofitable for reproof and for admonition to 
Federal officers. But I make no appeal to the passions. Let the 
stump and the newspaper do that. One who desires to speak upon 
this case within the record, and directly to the points before the court, 
will find himself restricted to a narrow compass. What I have to say 
upon it, therefore, will be said briefly ; I hope it will be said intelli- 
gibly and plainly, as befits the discussion of a subject so entirely sim- 
ple as I believe this to be. 

The facts which you are required to keep in your memory can be 
stated in a breath. A murder was committed in a remote county of 
the State of Kentucky. When I say " remote," I do not mean that it 
was wild or uninhabited, but that it was a rural district, far away from 
any great thoroughfare of travel, or any great center of trade and pop- 
ulation. It was accompanied with circumstances of unusual atrocity, 
calculated to excite the alarm and indignation of the whole neighbor- 
hood, and all who heard of it. But it was committed witliin the lim- 
its of the State of Kentucky, and on her soil, within the body of a 
county. It was an atrocious insult to her dignity, and the grossest 
possible outrage upon the peace of that community, which, by the or- 
ganic law of this land was placed under her sole protection. Her law 
and the law of God alone were offended by it, and none but the Al- 
mighty and the State of Kentucky had a right to enter into judgment 
with the perpetrators of it. No other State, or sovereignty, prince, or 
potentate on the earth had made, or had the power to make, any law 
which would punish that offense at that place. The United States 
never pretended that they had legislative jurisdiction on the subject, 
never declared a murder within the limits of any State to be an offense 
against them. It was no more an offense against the United States 
than it Avas against the Eepublic of France, or the Empire of Germany. 

The people and the public authorities of the State took the meas- 
ures that were proper and necessary in the premises. They ascer- 
tained, or supposed they had ascertained, who the murderers were. 
They followed them, overtook them, arrested them, carried them be- 
fore a magistrate, by whom, after a preliminary examination, they 
were committed — committed only in the way that a State magistrate 
had a right to commit them — to the jail of the proper county, to await 
their trial before the only court which, by the laws of Kentucky, had 
a right to try and to punish them. How long they were there I do 
not know. I know nothing upon that subject except what appears 
upon the record, and what was stated here by the Solicitor-General 
yesterday. One thing, however, is certain : that before a trial could 
be had in the regular course of justice, these men were taken away, 
out of the custody of the officer who held them, and carried beyond the 
reach of the State authorities. 



542 FORENSIC. 

If I were to stop just there, say no more about it, and you had no 
means of getting any information except what I have given you, the 
natural, the necessary conclusion would be that this rescue of the 
prisoners had been made by a lawless mob, composed either of their 
friends, who desired to give them a chance of escape, or else a mob 
made up of their enemies, whose hot thirst for their blood would not 
wait for the slow vengeance of the law. The Solicitor-General said 
there was a mob in the case. I did not know that before ; but it was 
not a mob that carried them away. They were not taken out of jail 
by any band of regulators nor by any committee of vigilance. It was 
the United States marshal who did that deed, and did it, I presume, 
in pursuance of what he supposed to be his duty ; he transported them 
to Louisville, a distance of one hundred and fifty or two hundred 
miles, there to be tried, not by a Lynch court, but by the Circuit 
Court of the United States ; and there they were tried. The public 
accuser of the United States for that district appeared against them, 
and preferred an indictment to the grand jury, which was found a true 
bill. This indictment charged them not simply with murder, but 
with murder upon a person of the African race. The averment was 
added that a witness was present of the same color, who saw it done. 
Then he charged them, as a further aggravation, with being white 
men. All these unusual charges are true. The murder, by whomso- 
ever committed, was on a negro woman ; a negro witness saw it ; and 
the prisoners are guilty of a skin not colored like that of the African. 
Upon these grounds the District Attorney insisted that this offense 
against the State of Kentucky was triable in the courts of the United 
States. His ingenious eloquence enabled him to convince that court 
that it had jurisdiction, and he is here now in the shape of a Solicitor- 
General to convince you that you ought to affirm the judgment. 

If the Circuit Court of the United States had the jurisdiction 
which was claimed for, and exercised by it, then the State is utterly 
disarmed of the power to protect her own people against a very large 
class of criminal offenders, or to defend her own existence against any 
assault that may be made upon it ; the most important function of 
a free State is wrested from her and delivered over to the officers and 
agents of another and a different government, which may or may not 
be administered by total strangers to the State — perhaps the bitter 
enemies to her peace and prosperity — men who think it a crime to 
sympathize with her people — men who would "laugh at her calamity 
and mock when her fear cometh." It is hard that a blow like this 
should have come from the distinguished gentleman who has given it 
so much force both here and in the court below. I think he is proud 
of his State. He nods his head. He ought to be, for there are por- 
tions of her history which would honor any nation in the world. 
The State is proud of him too ; at least, I suppose that there is, as 



FORENSIC. 543 

there ought to be, a good deal of mutual admiration between them. 
He can hardly be conscious that he has a rope around the neck of his 
political mother, and that every pull he makes upon it is choking the 
life out of her body. 

However, we can not get either him or his chief to understand the 
subject as we do. It is necessary, therefore, that we should call your 
careful attention to the consequences which must result from your 
affirmance of this jurisdiction. You will know that we are not mak- 
ing a mere captious objection to a measure enacted by Congress, but 
standing in the defense of those rights without which the State must 
cease to be a State. 

Neither of the gentlemen on the other side has raised, but, on the 
contrary, both have refused to raise, or rather they have evaded, the 
question whether the law of 1866 gives to the Federal courts exclusive 
jurisdiction of the cases within its purview, or whether it is concur- 
rent with the State courts. I am somewhat surprised to find them 
halting between two opinions on a point like that. The jurisdiction 
is exclusive beyond all possible doubt. There are, as they have truly 
said, two classes of cases here of which jurisdiction is given to the 
Federal courts. One consists of those cases which arise under the 
law itself, such as are created, defined, and made punishable by the 
act of Congress — an indictment, for instance, against a judge for ad- 
ministering the law of Kentucky according to his oath. Of this first 
class exclusive jurisdiction is given in terms to the District Court of 
the United States. There is another class of cases for which no Fed- 
eral law has provided any punishment, cases which arise wholly and 
entirely under the State law — such a cause as the one before you. Of 
these jurisdiction is given to the District Court to be exercised by it 
concurrently with the Circuit Court of the United States. Now, 
when you give jurisdiction to one court concurrently with another, ex 
vi termini, that excludes all other courts. You can not say that there 
is a concurrent jurisdiction between two courts and mean to say that 
another court has also concurrent jurisdiction. 

Besides that, it is very clear that the reason why this jurisdiction 
was to be taken in any case from the State courts and given to the 
Federal courts was because Congress thought it not proper to trust the 
State courts with the decision of any case which might affect negroes, 
mulattoes, or persons of African descent. That general intent and 
purpose of the law would be wholly defeated if the State courts had 
concurrent jurisdiction in every case where they, by superior vigi- 
lance, activity, or force, would be able to get possession of the party 
first. Congress could not have meant to give two different and hostile 
sets of courts a scrambling jurisdiction, to be contended for like a 
piece of wild land on the Western frontier, where one squatter has title 
as long as another does not "jump" his claim. It could not have 



•544 FORENSIC. 

been meant to reduce a question of jurisdiction in criminal cases to 
Kob Eoy's rule, that — 

" He shall take who hath the power, 
And he shall keep who can." 

Then it is an exclusive jurisdiction in the Federal courts, and a 
total denial of all right on the part of the State courts to intermeddle 
in any case which affects the negro race. That is the result of this 
law, if it be valid and constitutional. It does of course affect the negro 
race whenever one of them is a party. By the construction of our 
opponents, negroes are also affected, and, as a consequence, the State is 
deprived of its power to try or punish white offenders in every case 
where the crime, at the time of its commission, incidentally produced 
injury to any person of that color, although the proceeding is not in- 
stituted to redress the private injury, but only to vindicate the State 
against a public wrong. And they assert that it also affects them in 
every case where any person of the African race or color may be a wit- 
ness to prove the crime with which a white man is charged. 

It does not matter whether the testimony of the black witness is 
important or unimportant. The same fact may be testified to by a 
hundred white witnesses of credible character, but if there be a black 
one, no matter how unnecessary his evidence is to the conviction of 
the party accused, that is sufficient, propria vigore, to oust the juris- 
diction of the State courts and vest the exclusive jurisdiction in the 
Federal courts. If a fight takes place at a militia muster, or a cross- 
roads meeting, or a general election, or a barbecue, or at any other 
public gathering, in the presence of a thousand white persons who can 
testify to it, though it concern nobody but white men, though it is 
between white men entirely, they can not be indicted for the offense 
in a State court if one single negro or mulatto in that whole crowd 
saw the thing done. If a negro is indicted, along with others, for 
being in the affray, it goes, of course, to the Federal courts. If a white 
man is taken up for a crime against the State, indicted, arraigned, and 
his guilt clearly proved by white witnesses, he can defeat the jurisdic- 
tion, and entitle himself to an acquital, not by proving that he is in- 
nocent of the offense, but by proving that he is guilty, and that the 
crime was done in the presence of a negro. If the law of Congress be 
valid, and that be the true construction of it, any man that pleases 
may start out with a pre-expressed determination to commit any crime 
he pleases against the State of Kentucky, with perfect immunity from 
the State authorities, if he will simply take a negro along with him 
when he does the deed ; and if he is not so happy as to have done it 
in the presence of one of that race, all he needs to do is to hunt up a 
black man and make a confession in his presence. 



FORENSIC. 545 

This is an intolerable grievance, which no State can suffer without 
groans and tears, even if it were confined to great cases, where the 
23ublic alarm would insure punishment in the Federal courts ; but it 
extends to the smallest and the lowest cases ; to that minute distribu- 
tion of justice which is made by the local magistrates in the townships ; 
to assaults and batteries ; to small thefts ; to the slightest breach of 
police regulations which the law calls a crime. Upon the prompt and 
speedy punishment of such offenses as these, the peace of neighbor- 
hoods and the morals of the people depend far more than on the decis- 
ion of great causes. But in none of these can the State courts admin- 
ister justice if a negro be affected. The District Court of the United. 
States for Kentucky is filled now with cases of assault and battery and 
petty larceny, brought from every part of the State. I do not wish 
to speak disrespectfully of any of my friend's friends, but I must be 
permitted, to say (97hat I have the highest authority for saying) that 
negroes have a powerful bump of acquisitiveness in little things, 
which results frequently in producing a decided proclivity to stealing. 
The Solicitor-General says that the African race have been Christian- 
ized, and civilized, by our benign institutions — by which I understand 
him to mean slavery ; but he will not pretend, I think, that slavery or 
anything else has taught them the difference between meum and 
tuum. Nor will they ever learn it unless the knowledge is forced 
upon them by the law. But this act of Congress deprives them of 
the lessons which they might otherwise receive in that stern but 
wholesome school. 

If a negro steals a hog, or robs a hen-roost, the suffering party 
must let him run unpunished or else go to Louisville for justice, and 
that would cost twenty times as much as the pigs and chickens are 
worth. The consequence must be that nine tenths of the lower class 
of crimes committed by negroes, and by white men under the protec- 
tion of negro witnesses, must go unwhipped of justice. The people 
become totally demoralized ; they graduate in crime from the lowest 
to the highest, and society is altogether broken up. 

Under this law, a State court in Kentucky is not able to enforce a 
decree, sentence, or judgment of its own, even in a case which is ad- 
mitted to be within its sole jurisdiction. Any black gentleman, who 
chooses to say that it shall not be carried into effect, can strike the 
process dead in the officer's hands ; and a white man may do it also if 
he does it in the presence of a negro. The judge thus insulted may 
go up to Louisville and ask the Federal court to punish the contempt. 
I do not know what answer would be given ; but a proper answer 
would be, that no contempt can be committed against the courts of 
Kentucky, because they are utterly contemptible already in the eyes 
of the Federal law. 

The State of Kentucky can not, by the aid of her judicial authori- 



546 FORENSIC. 

ties, parry the lunge of the most atrocious assassin who chooses to aim 
his weapon at her heart. She can not punish treason against the 
State. A band of negroes and white men, either, or both united, may 
organize themselves into " ranks and squadrons, and right forms of 
war," and march upon the capital with an avowed determination to 
depose the Legislature and the Governor, and to establish somebody 
else in their place, or to create a civil war which shall cover the whole 
commonwealth with blood and ashes, and although they be taken red- 
handed before they have accomplished the forcible overthrow of the 
government, they can not be punished in the State courts if any ne- 
gro saw the overt act, much less if he was a part of the insurrection 
in his own person. 

There is another curious anomaly created by this law, to which I 
shall ask your attention, simply because it is a puzzle. I know how 
ingenious your honors are, but I do not believe there is a man among 
you that will untie this knot. "Where is the pardoning power in a 
case like the present ? Has the President a right to pardon an offense 
against the State of Kentucky ? No. By the Constitution he is 
especially limited in the exercise of tliat power to ^' offenses against the 
United States," that is, offenses defined and made criminal by the 
laws of the United States. On the other hand, suppose the Govern- 
or of Kentucky, while this cause was pending, had sent his pardon 
and put it into the hands of the accused parties, and they had pleaded 
it, would the Federal court have sustained that plea ? Or, suppose 
that after they had been convicted, and they were in the hands of the 
marshal for execution, the Governor had sent a pardon to him ? The 
marshal would have treated it with contempt. He is acting under the 
sentence of a Federal court, and is not bound to obey the executive 
of the State when he tells him not to carry it into effect. 

It is no answer to this to say that the State of Kentucky might 
relieve herself if she would change a certain law, which the Attorney- 
General and the peoj^le of other States have seen proper to disapprove. 
That is her own business. The rules of pleading and evidence which 
she may adopt depend, and ought to depend, upon the discretion of 
her own Legislature. Congress itself does not deny that her people 
may say what the barons of England said on an occasion equally mem- 
orable concerning a code far more obnoxious to censure — nolumus 
leges nostras mutare. Assume the law in question to be wrong — con- 
cede that the people of the State close their eyes upon the error — ad- 
mit that they stubbornly refuse to be lashed into a repeal — something 
should be pardoned to the spirit of independence which they have in- 
herited from their forefathers. No community, long accustomed to 
freedom, will ever be driven into measures by the dictation of those 
who have no right to intermeddle with them. All men claim the 
privilege to do as they please in regard to those things which concern 



FORENSIC, 547 

nobody but themselves. Coercion like this has never yet accomplished 
a good purpose. 

Men will not reason, they ou\j feel, when they see the whip of a 
master held over their heads. After the laws for the punishment of 
heresy were enacted, in the reign of Philip and Mary, Archbishop 
Bonner went to Ridley and proposed to convince him of his error. 
But Ridley said : "I can receive no instructions from a man who 
comes to me armed with a law which enables him to put me to death 
if I do not agree with him ; repeal your penal laws against me and my 
brethren, and then we will hear you with pleasure." Laws similar to 
this were made and carried into execution for centuries against Ire- 
land, with the hope of extirpating the Catholic religion ; but it only 
made them cling with more tenacity than ever to the faith of their 
fathers. The morning after the Catholic Emancipation Bill was 
passed, Tom Moore, the poet, took up a newspaper in which the fact 
was announced. " It is passed," said he, ** and now, thank God, I can 
turn Protestant if I please," by which he meant to say, as he after- 
ward explained it, that up to that time it was a point of honor with 
him to stand by the old Church right or wrong. But as soon as the 
penalties were removed, he took up the subject and considered it as 
he had never considered it before. 

Equally in vain is it to say that the administration of justice by 
the Federal courts will be just and proper. I have no right to say that 
anybody connected with the United States Government in Kentucky 
has done anything that was intentionally oppressive or cruel, or meant 
to produce the disorders which have resulted from this law. I believe 
that every case which has been tried in the United States courts there 
has been disposed of conscientiously. But it is impossible for a single 
court, situated upon the banks of the Ohio River, with a great State 
extending three hundred or four hundred miles around, to administer 
that local justice upon which the peace of every county and townshii? 
depends. The people can not afford to go there for justice ; they 
would rather do without it. Then, again, everybody revolts against 
the idea of having the domestic affairs of his community interfered 
with by persons who, however good they may be, are strangers to 
them, and whose rule is forced upon them against their will. 

The autonomy of a free State is not a thing to be trifled with. It 
has been contended for by every friend of liberty in all past time. 
AVhen Megara and Corinth and Thebes lost that they lost everything, 
and Athens justly forfeited her own independence by trampling on 
that of the other Greek cities. The free towns and small principali- 
ties of Western Europe were contented and prosperous as long as they 
retained the right to administer justice among themselves, and as soon 
as some great power took that away they eitlier sunk into abject slave- 
ry or else were given over to the most frightful disorders. This sys- 



548 FORENSIC. 

tern of imperial regulation in domestic affairs was tried well in Ireland 
for two hundred and fifty years, and for twenty-five years it was tried 
equally well in the southern departments of France. What did it 
produce ? Wliite-boyism in one country and Chouannerie in the 
other. 

In the worst days of the Roman Empire it was an established rule 
that the local customs and local tribunals of the provinces should not 
be interfered with. Rome sent her pro-consuls everywhere, and they 
behaved badly enough sometimes ; but it was their prescribed duty to 
abstain from all interference in mere local affairs. You have a case 
on that point reported in a book which I am sure some of you have 
read. When Gallio was the Roman deputy for Achaia, with his head- 
quarters at Corinth, a set of pagan scallawags and carpet-bag Jews 
caught the Apostle Paul and brought him up on a charge that he was 
disturbing the peace by preaching a false religion. But Gallio an- 
swered : ''If this be a question of words and names and of your own 
law, look ye, to it, for I will be no judge of such matters" ; and the 
report adds that "he drave them from the judgment-seat." After- 
ward, when Paul's accuser was riotously assaulted in the streets, he 
declined to take jurisdiction of that offense. ''Gallio cared for none 
of these things." The imperial government did not send him there 
to boss the police jobs of the city. Tiberius was the worst of the 
Caesars, but he made it the boast of his reign that he had not dis- 
turbed any separate community in the enjoyment of their own laws, 
or interfered with the local tribunals in the administration of justice. 
Base as he was, he understood the philosophy of jurisjorudence well 
enough to know that no people were ever contented, happy, or pros- 
perous, unless they were permitted to regulate their own affairs. 

When the Bourbons were restored in 1815, the king was re-invested 
with all the powers of the old French monarchy. But he was obliged 
to make a solemn promise, by treaty with his subjects and with his 
allies, that he would never deprive the people of the right to be tried 
by their natural judges ; that is, the local magistrates, who, living 
among them, were responsible to them for the righteousness of their 
decisions. 

But if the State of Kentucky is placed by the Federal Constitution 
in this unfortunate predicament, I can not help her and neither can 
you. I propose to show, therefore, that this act of Congress is a 
sheer, naked, flat breach of the Constitution. My proposition is, that 
the judicial as well as the legislative and executive powers of the 
United States are defined and limited, and that the limitation upon 
the judicial power is such that no right exists or can be vested by 
Congress in the Federal judges to try a case like this one at bar, or any 
case at all like it. 

The judicial power of the United States, granted in the Constitu- 



FORENSIC. 549 

tion to this Government is defined by, and limited in, the Third Ar- 
ticle. The first section declares that, "The judicial power of the 
United States shall be vested in one Supreme Court and in such infe- 
rior courts as the Congress may from time to time ordain and estab- 
lish." That is a limitation ; you have so decided. There is no other 
way in which the judicial j)ower can be exercised. It can not be dele- 
gated to a star chamber, a high commission, an ecclesiastical council, 
or a board of military officers, nor to any other special tribunal impro- 
vised for the conviction of particular individuals. All power to hear, 
decide, and adjudicate, in civil or criminal cases, is confined to the 
ordained and established courts. 

The amount, quantity, extent of the judicial power which is given 
to the United States, to be exercised by their courts, is defined and 
limited with equal clearness by the second section of Article III. 
What does it say ? ' ' The judicial power shall extend " — mark the 
language ; there is no English word more significant for the purpose 
of creating a limitation : " the judicial power shall extend," how far ? 
Thus far, and, of course, no farther — "to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority ; to all 
cases affecting ambassadors, other public ministers, and consuls ; to 
all cases of admiralty and maritime jurisdiction ; to controversies to 
which the United States shall be a party ; to controversies between 
two or more States ; between a State and citizens of another State ; 
between citizens of different States ; between citizens of the same State 
claiming lands under grants of different States, and between a State, 
or the citizens thereof, and foreign states, citizens, or subjects." 

You can not make any kind of a mistake about the cases over 
which the judicial power of the United States constitutionally reaches. 
It depends sometimes upon the nature of the subject-matter, some- 
times upon the character of the parties, and sometimes upon the rela- 
tion of the parties to one another ; but no man will risk his reputa- 
tion for sanity by saying that the power described there extends to the 
trial of a case like this. It can not be ranged under any head which 
the Constitution enumerated. You have, then, the judicial power of 
the United States limited, and limited so as not to reach this case ; 
and in a government of enumerated powers, whatever is not given is 
withheld. Expressio unms exclusio est alterius. 

But our learned friends on the other side protest against a strict 
construction. They think that the powers of the Federal Government 
ought to be as liberally interpreted as possible. I do not know ex- 
actly what they mean by a strict construction. I am not asking for 
any construction that would have been called strict by the public men 
of Virginia at the time when that State was in the habit of furnishing 
Presidents to the Union. I do not ask you to believe in Washington, 



550 FORENSIC. 

and Jefferson, and Madison, and Monroe, and Jackson, or any disciple 
of that set whose opinions were the standard of political orthodoxy for 
seventy years. I believe, in my heart and conscience, that they were 
right. They were the best and wisest men that ever lived in all the 
tide of time. Among the statesmen called great in these degenerate 
days not one is worthy to stoop down and unloose the latchet of their 
shoes. If there is consecrated ground on all this earth it is the tomb 
at Mount Vernon, the sepulcher at Monticello, and the grave at the 
Hermitage. But I would not endanger any cause at this time of day 
by trying to sail as close to the wind as they did. I will not ask you 
even to adopt the notions of such men as Hamilton and Adams, or 
Clay and Webster, who were supposed to be rather loose in their ideas 
of construction. I shall not cite anything from Marshall or Taney. 
We are an enlightened people. We have voted ourselves to be so, 
and we have learned to feel a wholesome contempt for our fathers. 
Therefore I consent, for my part, that when you find any opinion 
more than ten years old, you shall discard it at once, and cast it aside 
among the rubbish of the Dark Ages. But this is what I do ask— this 
we have a right to demand — this we are sure to get, as long as the 
Supreme Court is allowed to stand, and as long as the Constitution is 
not formally abolished : that is an Ti07iest construction of the written 
organic fundamental law which we all swear to support — such just 
and fair interpretation of the Constitution as any right-minded man 
would give to any instrument containing a grant of anything, whether 
it be property, corporate privileges, or political power. 

By every rule of interpretation that ever was invented — by every 
canon of construction known among civilized or barbarous men — by 
every principle of law and logic— by that good faith which holds the 
moral world together — by that decent respect which every honest man 
is bound to feel for the common sense of his fellow men — you are 
compelled to say that nothing can be taken under a grant which has 
not been given it. That is not only the natural construction of this 
grant, but it is expressly declared by the instrument itself that it shall 
never receive any other. The Tenth Amendment says that "the 
powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, 
or to the people." The oath which binds us to support the Constitu- 
tion compels us to give it that interpretation. Look also at the 
Ninth Amendment. Certain rights had been expressly mentioned as 
belonging to the States and the people in the Constitution, and, in 
order that the force of the general words of reservation might not be 
weakened by the mention of these, it was declared that " the enumer- 
ation in the Constitution of certain rights shall not be construed to 
deny or disparage others retained by the people." The framers of the 
Constitution dreaded the absorption of the State authority and popu- 



FORENSIC. 561 

lar liberty by the Federal Government, and they did all that human 
wisdom could do to prevent it, and they took away all color of legal 
excuse from every construction which might be used to do it. 

You may adopt the loosest construction you can so that it be a con- 
struction. Take all the power that is granted according to the most ex- 
tended signification of the words. Stretch the meaning, as far as you 
possibly can, of every syllable which adds to the power of the General 
Government. After doing this, take all the additional power that your 
utmost ingenuity can conceive of as necessary to carry the others into 
effect. Then narrow down the sense of every word tbat expresses or 
implies a right on the part of States or people. Do everything that 
can be done by construction to magnify and increase the central au- 
thority — do nothing for liberty — let every claim for self-government 
be discountenanced as much as possible. Let the powers thus accu- 
mulated and extended by construction be left in the hands of the Fed- 
eral officers to be guarded, as no doubt they will guard it, with " love 
strong as death, and jealousy as cruel as the grave." But after you 
have gone as far as any kind of construction will carry you in that 
direction, we ask you to stop. Do not take what is neither expressed 
nor implied in the grant, for that is not construction, but destruction. 
"We stand upon the outer limits of the Constitution and implore you 
not to pass that border. 

I think I can illustrate my idea of these different sorts of construc- 
tion by reference to a very old grant, I believe the oldest one on record 
of which the terms are distinctly made known. 

About the time of the Trojan war, or a little before, a Phoenician 
king was assassinated in the city of Tyre. His widow was comiDelled 
to leave the country, and she led out a considerable colony. They 
sailed down the Mediterranean, until they came to a place on the north- 
west coast of Africa, which was afterward called Carthage. There 
they concluded to make a settlement. But the difficulty was to get 
a foothold in the country ; for the native princes and people had full 
dominion over all the region round about. After some bargaining 
they got a grant, the limits of which were rather curiously defined. 
It authorized the grantees to take as much ground as could be inclosed 
by a certain number of bulls' hides. Inside of that space the Tyrians 
were to have political jurisdiction, as well as a proprietary right to the 
soil. But it was expressly agreed, and all parties swore to observe the 
compact, that all the land outside of the bull-skins should belong for- 
ever to the original owners, and be controlled by their own govern- 
ments. In other words, the powers, privileges, and property, not in- 
cluded in the grant, were reserved to the states respectively and the 
people who were the grantors. The strict, that is to say, the honest 
construction of this grant would be to take the hides just as they 
came from the beasts' backs and lay them down, touching one another 



552 FORENSIC. 

in a circle or a square. There is a poetical tradition that one of the 
queen's counselors proposed to do this ; but he was an old-fashioned 
Jeffersonian, and his advice was not adopted. The latitudinarians cut 
the hides up into the narrowest thongs they could make, tied them 
together, and in that way included as much land as they needed for a 
large city, with a great deal of outlying territory besides. That is 
what I call a loose construction of Dido's grant : but still it was a 
construction. It showed some respect for the grant itself ; that while 
they were not willing to be confined within, perhaps, the just limits of 
it, they still acknowledged the obligation to stay inside of it, accord- 
ing to some rule. After awhile, however, they set at naught even 
their own construction, and basely used the granted power to strip the 
grantors of the rights reserved. They went over the lines set by 
themselves, and took possession of everything. From that day to this 
*' Punic faith " has been the synonym of treachery and falsehood all 
the world over. The law officers of the United States are now asking 
you to sanction an act of their Government precisely analogous to that 
which made Carthage a proverb and by-word for cruelty and shame. 

The States and the people made a distribution of all the power 
which belonged to them. Some was bestowed on the General Govern- 
ment, and some was retained by the people and given to the States, or 
kept in their own hands and excepted forever out of the powers of all 
governments. If this be true, and if it be also true that all parties 
swore to observe the distribution just as it was made, that is to say, that 
the States should remain undisturbed in that portion of the judicial, 
legislative, and executive power which was not granted to the United 
States, and that the United States should hold, not for a day, but for 
all time, the powers that were granted to them, I want to know why 
it is any worse or any better to tear away the power allotted to the 
States, than it is to .take from the Federal Government a function be- 
stowed upon it. If the line of demarkation that was agreed to be ob- 
served between the States and the General Government is to be 
observed at all, is it not just as bad to pass it in one direction as it is in 
the other ? 

If a State says she will not abide by the distribution, but that she 
will take back and re-assume what was granted to the General Govern- 
ment, that is manifest usurpation ; and if she proceeds to maintain it 
by any show of military force, every individual concerned in it is 
guilty of treason. Now, will anybody tell me why it is not treason 
against the State for officers of the General Government to usurp upon 
a State by forcibly taking away from her the rights plainly reserved ? 

There is one argument against the States which may have much 
influence with some persons. It comes, I believe, from Talleyrand, 
who laid it down as a rule that '' the weak are always in the wrong." 
Certainly the United States are stronger than any State of this Union. 



FORENSIC. 553 

They have more men, more money, and a better organized physical 
force to maintain any usurpation which they resolve upon. Public 
men who desire to have their talents well rewarded are sorely tempted 
to serve the Federal power. But " we, the people," who are not poli- 
ticians, and who ask nothing of any government except the privilege 
to earn our bread and eat it, do not understand that argument at all, 
and we never will ; nor do I see how it addresses itself with any force 
to the conscience of a judge. 

If the judicial power of the United States is so limited that it does 
not extend to a case of this kind, how can you justify the assumption 
of it? 

Of your own head you can take no power which the Constitution 
has left in the hands of the States, and neither can Congress increase 
your power. All the departments of the Government can not increase 
the power of any one. 

My learned friends do not find, or pretend to find, any grant of 
judicial power which covers a case like this in the body of the Consti- 
tution, nor in any of the first twelve amendments. The Fourteenth 
and Fifteenth are also out of all question, for they were not adopted 
when the act of 1866 was passed. They found their claim of jurisdic- 
tion solely on the Thirteenth Amendment. If that enlarges the ju- 
dicial power, or sets the line out so far as to take in a case like this, 
we have no more to say. But not a word is there to change the origi- 
nal distribution of the judicial authority. The power of the State is 
left untouched to administer her own laws for the prevention of crime 
and the preservation of order among her own people. When, there- 
fore, they come with their knife to cut this pound of flesh from the 
bosom of the State, I tell them "^it is not so nominated in the bond." 
But then they tell us that it is implied from the necessity of carrying 
the Thirteenth Amendment into effect. 

The Thirteenth Amendment has no kind of connection, legal or 
logical, with the Civil Rights Law of 1866. That amendment executed 
itself. It abolished slavery or involuntary servitude, except as a pun- 
ishment for crime. The moment it was adopted the relation of master 
and servant, as it had previously existed in the Southern States, was 
dissolved. The statute does not profess to be based on the amend- 
ment nor to carry out the abolition of slavery. It speaks of slavery as 
a thing of the past — as a "previous condition" of certain persons. 
My learned colleague has demonstrated, by reasoning and authority 
which no man can answer, that snch legislation as this of 1866 is most 
inappropriate, improper, and unnecessary to carry out anything con- 
tained in the Thirteenth Amendment. I leave that part of the argu- 
ment where he put it. 

But I said I would not object to a loose construction of the Consti- 
tution, and I will not go behind my word. I therefore assume, for 



554 FORENSIC, 

the argument's sake, what is manifestly not true, that the Thirteenth 
Amendment required some act of Congress to carry it into effect ; 
that Congress had a right to determine what law was best for that 
purpose ; tliat no matter how unnecessary or inappropriate or im- 
proper this law may appear to you, if Congress chose to adopt it as a 
means of carrying out the amendment, that fact alone made it "the 
wisest, virtuousest, discreetest, best " that human sagacity could have 
devised. In other words, you are to presume that everything is neces- 
sary — everything is appropriate which Congress chooses to enact. 
Let it be conceded that you can not even inquire into the necessity of 
the law, nor deny its fitness, but that we must just take what is given 
to us and "ask no questions, for conscience sake." 

If that construction is not loose enough, I desire my friend, the 
Solicitor-General, to tell me how I can make it looser, for he shall 
have it as loose as he pleases, so far as this case is concerned. He 
shall not say that we hold back the car of improvement in the j)rinci- 
ples of interpretation. 

But there is one barrier which he can not break — one limitation 
which he will not stand up and say that anybody has a right to trans- 
gress. The legislation to carry out one part of the Constitution must 
not violate another part ; it must be within the scope of the Constitu- 
tion, consistent with its general principles, and not either expressly or 
impliedly prohibited. That is fatal to this act, for the jurisdiction it 
gives to the Federal courts in matters purely of State cognizance is a 
clear breach of the Third Article. 

If that were not the rule it would always be a question between 
the two parts of the Constitution which should break the other down. 
You could resolve the whole Constitution into any one article or one 
clause, and, on pretense of carrying that out, with the unlimited pow- 
er of Congress to determine what is appropriate, you can do anything. 
You can establish a national church ; you can destroy the obligation 
of all contracts, make ex post facto laws, pass bills of attainder, confis- 
cate men's property behind their backs, and organize a general system 
of military commissions instead of the courts, or you can let the 
courts stand and extend the judicial power over every conceivable 
case that may arise under the laws of the States ; you can clothe the 
President with the powers of an absolute monarch ; you may suspend 
the writ of habeas corpus indefinitely, by a total repeal of the law 
which allows it, abolish the right of trial by jury, and make a crimi- 
nal code for the States as bloody as that of Draco, or you may take 
away all protection from property and life by declaring that theft and 
murder shall be counted among the virtues. I do not say that these 
things would be done. I think they would not be done immediately. 
But I do say that when you go over the line to which the Constitution 
limits you, and take possession, upon any pretext whatever, of that 



FORENSIC. 555 

unbounded field of power which lies outside, this Government must 
become an absolute despotism in theory and in practice. The States 
and the people may be mercifully dealt with, but they will have no 
rights which their rulers here are bound by law to respect. 

I think I have shown that the judicial power of the United States 
does not extend to the punishment of offenses against the State ; that 
the power to do that is reserved to the States ; and that to take this 
power away from the States and vest it in the Federal authorities is a 
flat violation of the Third Article. You have, therefore, only one 
alternative ; and that is to say either that the act of Congress is void, 
or else that the Constitution is not binding. 

But I do not admit that this case is within the act of Congress. 
The act gives jurisdiction to the Federal courts in " civil and criminal 
cases affecting " the black race. Does this affect them ? 

The victim of the murder was black, and one or more of the wit- 
nesses were of the same color. I am not going to repeat (for I could 
not do more than repeat) the argument of my colleague [Mr. Cald- 
well] upon the distinction which has been taken between the words 
*' cause "and "case." You will not see the State of Kentucky im- 
paled alive upon a jiin's point so sharp as that. 

But that is not the important word in the sentence. The con- 
struction turns on the meaning of the word " affect," and this court 
decided long ago, in the United States vs. Ortega, that a criminal 
case (or cause) affects nobody but the party accused and the public. 
That decision, indeed, is an old one, but I suppose the war has not 
changed the English language. At all events this is a point on which 
you have Moses and the prophets, and if you believe not them you 
would not believe though one rose from the dead. 

It is argued, however, that the words of this act must not be un- 
derstood in their popular or their legal sense, because that would con- 
fine its operation to cases in which negroes are accused, and this, it is 
said, would be inconsistent with the well-known feelings of Congress 
and that portion of the people whom Congress then represented. I 
am willing to admit that this law was passed under the influence of 
violent party passions, which took the form of extreme enmity to the 
white people of the South, and ultra benevolence, it may be, to the 
blacks. But I deny that you can incorporate these passions into the 
statute by mere construction. The law must be interpreted ex visce- 
rihus suis. The Legislature speaks to the country only through the 
statute-book. But why is it inconsistent with the supposed feelings 
of Congress to take Federal possession only of negro cases ? It was 
negroes alone that they desired to protect against the alleged severity 
of the State courts. This act of Congress makes persons of the black 
race citizens of the State, and then takes away from the State all power 
to enforce upon them the duties and obligations of citizens, Ta ac- 
33 



556 FORENSIC. 

Gomplish this, wna more was necessary than to order that no State 
court should punish any negro for any violation of a State law ? Was 
not this carrying their party passions into effect by appropriate legis- 
lation ? And was not this exactly what they did when they declared 
the State courts incapable of trying any cause which affects negroes ? 

Another authority is cited by our opponents — that of Alexander 
the Second, King of Muscovy and Autocrat of all the Eussias. It is 
said that some of his serfs were emancipated in 1861, and the decree 
for that purpose was followed by seventeen ordinances much resem- 
bling this act of Congress. You are urged to construe the Thirteenth 
Amendment and the Civil Eights Bill so as to make them consistent 
with the manifest intention of the American people and their repre- 
sentatives, to follow closely in the footsteps of that enlightened potent- 
ate. We are getting along rather fast when the officers of our law 
can propose to set aside the Constitution that was signed by the sacred 
right hand of George Washington, and by thirty-nine others, only less 
illustrious than he was, because it happens to be inconsistent with the 
decrees of the most ultra despotism in all this world. It is as much 
a despotism to-day as it ever was. In all those vast dominions, from 
Oronstadt to Siberia, from the frozen ocean to the German line, there 
is not a single freeman. Ever since the days of Ivan the Terrible it 
has been a habit of tbat despot to change the relative rank of his 
slaves, just as a Southern planter might have promoted a field-hand to 
the dining-room or sent his body-servant out to pick cotton. But he 
never freed a human being. No slave of his dares to express a hope 
of liberty for himself or his children, except at the risk of his life. No 
foreigner sojourning in that country is permitted to open his lips on 
such a subject. The government of Eussia is in sympathy with every 
other despotism, and whenever a tyrant wishes to fasten the shackles 
more securely on the limbs of his subjects, the colossal power of Eus- 
sia is ready to give him aid and comfort. You know how effectually 
this was done upon Hungary. Does the American Attorney-General 
think that the American courts and juries ought to be abolished be- 
cause it is the custom in Eussia to murder men by military commis- 
sions ? Will he advise the President that the States should be deprived 
of their autonomy because the will of the Emperor is absolute law in 
all his provinces ? Does he derive his ideas of reconstruction from 
the same ''enlightened" source ? Is the example of Nicholas suffi- 
cient authority for a repetition in this country of that brutal outrage 
which he perpetrated in the capital of Poland — which no Christian 
man can mention without blushing — but which he followed, while the 
shrieks of his victims were yet ringing in his ears, with that famous 
proclamation, " Order reigns in Warsaw ! " Yes, it is Eussian free- 
dom, Eussian law, and Eussian order that the adversaries of the 
American Constitution have been proposing to give us. 



FORENSIC. 657 

It is not from the exercise of despotic power, uor ycu from the 
headlong passions of a raging people, that we will learn our duty to 
one another. When the Prophet Elijah stood on the mountain-side 
to look for some token of the diviue will, he did not see it in the 
tempest, or the earthquake, or the fire, but he heard it in the "still 
small voice " which reached his ears after those had passed by. We 
have had the storm of political debate ; we have felt the earthquake 
shock of civil war ; we have seen the fire of legislative persecution. 
They are passed and gone, and now if we do not hearken to the still 
small voice which speaks to our consciences in the articulate words of 
the Constitution from the graves of our fathers, then we are without 
a guide, without God, and without hope in the world. 



STATE OF MISSOUEI EX REL. FRANK J. BOWMAN vs. E. A. 
LEWIS ETAL., JUDGES ST. LOUIS COUET OF APPEALS. 

IN THE SDPEEMK COTJET OF THE UNITED STATES, 

Mr. Black said : This case involves a point of constitutional law 
deeply interesting to the whole community, and especially important 
to the party before you. 

It is very plain, very simple, and not doubtful. We may be wrong. 
If we are, we are so madly wrong that you will decide it against us 
without hesitation ; and if we are right, there can not be much said 
upon the other side ; there is no middle ground upon which you can 
find a halting-place. 

It is my duty to define the present position of the case, and state 
the ground upon which we expect that you will give to us the right 
which we vainly asked for in the State court of last resort. We insist 
upon it that what we asked for was a right. We demanded an appeal 
from the decision made against us by the local courts. Other people 
of the State had that right undeniably ; therefore we had it, for the 
State owed us the equal protection of the law. 

In view of some assertions and insinuations of the other side, it 
may be necessary and proper for me to say that the authority of this 
court is not now invoked by a man of doubtful character, or for a 
trifling purpose, but that justice may be done to a most meritorious 
citizen who has been foully wronged. He is a lawyer, and a sentence 
of expulsion from the bar has been passed against him. Compared 
to this, an order that he should be taken out and shot would be a visi- 
tation of mercy. You will surely admit that, if he is innocent, he 
ought to be relieved. When I say that he is a gentleman who stands 
in a position as near the head of the bar in the Western country as 
any other of his years has ever reached, and that he deserves to stand 



668 FORENSIC. 

there by his talents and his integrity, I say what I do know — that is, 
I know it as well as any fact of that natnre can be known upon human 
evidence : for it is perfectly impossible that the men of Missouri, who 
are known and honored throughout this whole country, would have 
stood by him, and walked with him through the fiery furnace of this 
persecution, if there had been the least suspicion of moral unsound- 
ness about his professional character. Judge Wagner is associated 
with us, not to argue the case, but to instruct us about it. We are 
proud to act under his direction and guidance. He was the chief 
judicial officer of the State for many years : he has been equally an 
ornament to the bench and bar : would he sustain this plaintiff in 
error ? would he defend and indorse him if there was any just reason 
for a doubt about his character ? No, he would see him at the bot- 
tomless pit before he would speak a word in favor of a corrupt or un- 
faithful attorney. 

But all this, I think, is beside the present purpose. Not now, not 
here, at another time and in another place it may be very proper to 
explode the truth upon this organized band of persecutors. Then 
they will hear some things to be remembered as long as they live. 
Hunting the tiger is all very well, but when the tiger begins to hunt 
them they will find the sport not so pleasant. 

Let me go on with my skeleton statement to show the technical 
condition of the case. This gentleman was practicing his profession 
honorably, uprightly, ably, and successfully, surrounded by all those 
things that should accompany a high career — " honor, love, obedience, 
troops of friends" — when a complaint was made against him in the 
Circuit Court of St. Louis for '' malpractice, deceit, and misdemean- 
or." He pleaded not guilty, and demanded a trial by jury. The 
jury came, and the trial proceeded. It lasted a month, and ended 
with a verdict of guilty. I need not say that my client alleges the 
ruling of the court, which drove the jury into this verdict, to be all 
wrong. He was treated throughout as one who had no rights which 
a white man was bound to respect. He asked for an appeal to correct 
those errors. I call them errors, because that is the technical word, 
and the only word I have a right to use when I am speaking in one 
court about the conduct of another. I can imagine myself in a place 
where I might feel justified in using a very different and much 
stronger term. 

The appeal was given ; but it took him only into the Court of Ap- 
peals for the city of St. Louis — another local court, elected by the 
same constituent body. There he encountered the same evil influ- 
ences, and the same bad passions, which had caused his conviction in 
the Circuit Court. The judges of the Court of Appeals affirmed the 
judgment of the Circuit Court with great pleasure, and refused him 
an appeal to the Supreme Court with rapture. 



FORENSIC. 559 

Otlier persons living and prosecuted in other counties of the State, 
for precisely the same offense, might appeal to the Supreme Court to 
get an illegal judgment reversed, and he thought himself entitled to 
the equal protection of the law. So therefore he went up to Jefferson 
City and asked the Supreme Court for a mandamus commanding the 
lower court to allow an appeal and send up its record for revision. 
The judges of the State court of last resort held that an appeal would 
not lie, and therefore refused the writ of mandamus. 

Now, think for a moment of the circumstances under which this 
demand was made and refused. By the statute law of the State, in <* 
full force for many years, an attorney might be tried in a civil court, 
not for contempt of that court, but for misbehavior in another court, 
or for wrongful acts done in his private office, unconnected with the 
business of any court. If convicted, he might be punished, not 
merely by being stricken from the rolls of that court, but by total ex- 
pulsion from the profession, and disabled to practice in any court. 
Observe : the proceeding is not instituted for the preservation of dis- 
cipline in that particular court, but to punish a general crime against 
the public justice of the country, and this crime may be prosecuted in 
a court without criminal jurisdiction, without indictment, without a 
grand jury, without the intervention of any public accuser, but at the 
instance of private enemies and rivals of the party. A more anoma- 
lous law has never been enacted ; a more dangerous instrument of per- 
sonal malice has never been furnished by the legislation of any country. 

I think this law is fundamentally vicious and void all through, 
because it inflicts the most frightful penalty for the most infamous 
offense, without the kind of accusation or trial which the Government 
of a free country owes to every citizen. But while it stripped the 
accused party of some rights which the meanest offender possesses, it 
left him one great right which made him at least measurably safe : it 
gave him the right of appeal to the highest tribunal of the State. It 
gave original jurisdiction to the local courts, but declared that their 
judgments might be revised, and, if wrong, reversed by the Supreme 
Court. The law was a bad one at the best, but it had the merit of 
being equally bad for all persons in every jiart of the State. 

But in 1875 a change was made in the State Constitution, and 
among other new provisions was this : that in the city of St. Louis, 
and three adjoining counties, the right of appeal to the Supreme 
Court should be taken away, while it should continue to be enjoyed 
by the inhabitants of all other counties and cities. 

The present plaintiff in error suggested that this discrimination 
was inconsistent with the fourteenth article of the Federal Constitu- 
tion, which secures to all citizens alike the equal protection of the 
law. He had the profoundest respect for the judges of the State Su- 
preme Court, and fully believed that if they would take cognizance of 



560 FORENSIC. 

his case they would do hiin justice. But they were awed by the 
words of their State Constitution. They could not entertain an 
appeal without declaring that the State Constitution, which forbade 
them to do so, was Yoid. This was rather embarrassing. They could 
hardly be expected to decide against the validity of the Constitution 
under which they held their commissions. No State court, 1 believe, 
has ever done this. They could only declare their inability to see the 
conflict between the two Constitutions. They acted as Nelson did at 
the battle of Copenhagen when he was signaled to take his ship out 
of action : he put his glass to his blind eye, and said he saw no signal 
of the kind. But these judges did the next best thing : they refused 
him his right under the Federal Constitution, and put the record in a 
shape which enabled him to bring his case here and have it decided by 
the highest authority. 

The Supreme Court of the State will be perfectly willing to hear 
this appeal if you say they are bound to do so, and the plaintiff in 
error will acquiesce in any decision which it makes, whether it be for 
him or against him. 

The principal question, the question which lies at the bottom of 
the case, is this : Can an appeal to the Supreme Court of a State ever 
be claimed as a right 9 Or is it a mere favor, which may be refused 
without injury ? 

We think it not only a right, but a right of inestimable value. If 
it be conceded to one man and refused to another it is mere folly to 
say that they both enjoy the equal protection of the law. 

You and I and all of us know very well that the administration 
of justice in the local courts is always liable to be seriously disturbed 
by ignorance, prejudice, personal hostility of the judges, and other 
like causes. These evils are greatly aggravated by the system of elect- 
ing judges now adopted in all the States. 

My own experience enables me to count up hundreds of cases, in 
which the grossest injustice would have been done if the decision of the 
local courts had stood unreversed ; and there are cases ten times as 
numerous where right was done according to law, only because the 
judges were conscious of a control by superior authority. The value 
of the right to appeal is incident more to its existence than its exercise. 
Would you be willing to live in a city or county or other subdivision 
of a State in which no writ of error could be taken to correct the 
wrong which might be done by a local court ? Having that right, 
would you be willing to part with it at any price ? You might feel 
secure in the local courts if you knew the judges to be friendly, or, 
without their friendship, if you were sure of their honesty, virtue, 
and learning; but under any circumstances you would feel your 
sense of security greatly increased by the knowledge that, if wrong 
was done, you had a remedy in some superior court. 



FORENSIC. 561 

The judges of the Supreme Court may do wrong themselves, for 
they are fallible like the rest of mankind, but the security given by 
their jurisdiction arises out of the fact that their relations to the case, 
and the parties, and to the law which they administer, are totally dif- 
ferent from those of the inferior courts ; for they must act upon rules 
which apply to the whole people, and which all parties can stand by. 
They represent that public wisdom which is universally recognized. 

For these reasons, and others equally good and sufficient, every 
civilized community has provided itself with one supreme tribunal 
charged with the duty of keeping the rest in order. It is so in France, 
in Prussia, and in all the German States. If it is not so in Eussia 
and Turkey, it is because in these countries they have no system for 
the administration of justice. There the law has no liead because it 
has no lody and no life. In England, ever since the time of the Sax- 
on Heptarchy, there Avas a King's Bench whose writs of error ran into 
every county. In Scotland, as soon as they got rid of the jurisdiction 
exercised by the chiefs of the clans, they civilized the kingdom by 
subjecting all the local courts to the revision of one central tribunal. 
Before the Kevolution the decrees of our Colonial courts could be ex- 
amined and reversed by the Privy Council, to which they were required 
to send up their records upon appeals properly taken. Every State in 
the Union is provided with a Supreme Court, and so is every organ- 
ized Territory. Georgia tried for a while to do without ; and got 
along badly enough. The consequence was so much uncertainty and 
wrong that she was driven, by stress of sheer necessity, to do what all 
other States had done, and make her law uniform by means of one 
controlling court. 

"What sort of government would this Federal Government have 
been without the one Supreme Court, required by the Constitution, to 
correct the errors of inferior Federal courts and reverse the false decis- 
ions of State courts on questions of Federal law ? Would not every 
provision be differently construed at different places ? What chance 
would men have of getting their legal rights uniformly and justly ad- 
ministered ? It is not too much to say that without this sheet-anchor 
of our judicial system all the purposes of the Government as expressed 
in the preamble of the Constitution would be defeated. We would 
have neither union, justice, tranquillity, common defense, general wel- 
fare, or liberty for ourselves or posterity. The right of appeal is the 
right preservative of all rights ; public safety and private security are 
alike involved in it — life, liberty, property, all depend upon it. 

I do most devoutly believe in the right of trial by jury. I think 
it entitled to all the veneration and respect which is felt for it. It 
has cost great expense of blood and treasure to get it. Eather than 
give it up I would pay over again the whole original price. The en- 
actment of the habeas corpus law was a strongly marked era in the 



562 FORENSIC. 

history of the great race from which we sprang ; and without it no 
people can be altogether free. But sacred as these privileges are and 
ought to be, I would surrender them both, rather than lose my right 
of appeal from false and oppressive judgments of the local courts. 
Perish the writ of habeas corpus, perish the trial by jury, but save 
me the great privilege of appeal. Armed with this, I can defy the 
malice of my enemies in the lower courts. Political prejudice, relig- 
ious bigotry, personal spite, may do their worst if I can have my rights 
measured at last by "the golden metewand of the law." 

I do not deny that an American State may, if a majority so please, 
abolish the right of appeal, trial ly jury, and habeas corpus. A 
State may make its government as tyrannical as it pleases, provided 
it does not go to the extent of being unrepublican ; and even then I do 
not see how you can reform it. But since the Fourteenth Amendment 
these fundamental rights must be given to all of the people alike ; all 
are entitled, by the Federal Constitution, as well as natural justice, to 
''the EQUAL protection of the law." The State can not make free 
institutions for one class while another is held down by oppression. 
The trial by jury must be given to all or none. The writ of habeas 
corpus can not be confined to one class or one place while others are 
excluded from the privilege. The people of a hundred and nine 
counties in Missouri can not make a Supreme Court for their own use, 
and refuse to share the blessing of an appeal to it with the people of 
the other four. Why ? Because that is manifestly not giving to all 
citizens the equal j)rotection of the law. 

It is said that the object of the Fourteenth Amendment was to 
make the negro equal to the white man. As a historical fact I sup- 
pose that is true. But to eifect their objects the framers of the 
amendment were obliged to use words so general that all men are 
made equal. It is prejDosterous to say that a provision for the perfect 
equality of all men can be used only for the benefit of a class — the dis- 
tinction between classes being the very thing prohibited. I think I 
can prove that no distinction can be made under this amendment be- 
tween different classes of white men as easily as I can demonstrate a 
geometrical problem. Suppose you have two white men and one 
negro, whose civil right it becomes your duty to measure. You know 
very well that the negro is exactly equal to either one of the whites, 
and they are both equal to him. You can, therefore, make no differ- 
ence between the negro and the white men, and therefore you can not 
distinguish between the white men themselves, because things that are 
equal to the same are equal to one another. Is not that as certain as 
mathematics ? 

If a State Constitution would provide for a Supreme Court, to 
which none but white men should appeal, compelling all negroes to 
suffer whatever wrong might be inflicted by the local courts, no man 



FORENSIC. 563 

would insult you by asserting in your presence that the negro and the 
white man were equally protected. If the negroes got possession of a 
State government and would exclude all white men from the right of 
appeal, would not that be just as bad ? The color-line is not a worse 
division than another line which might be run across it at right an- 
gles ; that is to say, a division of the people into two classes without 
regard to race. Suppose, for example, that the right of appeal be 
given only to persons of a certain religion, or certain political jjrinci- 
ple, would you stand that ? Certainly not ; and your answer in the 
negative would not depend in any degree upon the color of the per- 
sons affected. Many absurd distinctions might be imagined. But the 
most senseless and unreasoning that ever was invented is a distinction 
based on local habitation. People who live in the mountain ranges of 
the State shall have an appeal ; but those who cultivate the alluvial 
lands of the valleys shall have none. Writs of error shall run into the 
wheat-producing counties ; but in the cotton-growing regions all men 
shall be at the mercy of the local magistrate. In the rural districts 
the courts of original jurisdiction shall administer justice according to 
the law of the State as expounded by the Supreme Court ; but in 
large cities, where law is needed much more, vice and wickedness may 
riot unchecked. 

If you can exscind four counties from the rest of the State, and put 
them out of the pale, you can make smaller subdivisions for the same 
purpose ; you can disfranchise the jieople of a township, for instance. 
Suppose your State Constitution declared that a ward in St. Louis 
shall elect its own magistrates, to be called judges, justices, aldermen, 
lynch courts, regulators, or vigilance committees — what you will — but 
they shall have unlimited jurisdiction, and decide all causes without 
appeal or writ of error — what sort of a ward would it be ? Another 
Alsatia, filled with dangerous criminals, among whom no honest man 
could show his face with safety. And why would honest men be un- 
safe in such a place ? Because there the inhabitants have not the 
equal protection of the law. Wanting the right of appeal from the 
local courts, they are destitute of everything that can be called a legal 
right, or, what is the same thing, without adequate remedy for any 
wrong. 

Mr. Justice Strong. — I wish to ask, Mr. Black, if a writ of error 
or appeal can ever, in any case, take up a judgment from the St. Louis 
Court of Appeals to the Supreme Court of the State ; or are the de- 
crees of the St. Louis Court of Appeals always final by their present 
Constitution ? 

Mr. Black. — No, not always. In some cases, or classes of cases, 
the St. Louis Court of Appeals is merely intermediate. 

Senator Edmunds. — The St. Louis Court of Appeals is, by its 
structure and jurisdiction, an inferior court. 



664 FORENSIC. 

[The Senator handed to Mr. Black the Constitution of the State, 
from which Mr. Black read the section which created the St. Louis 
Court of Appeals, and defined its powers.] 

Mr. Justice Strong. — I asked for information, not knowing the 
state of the facts. Something might depend upon the question I put. 
If the Constitution established two separate and independent Supreme 
Courts for different parts of the State, dividing the territory, for in- 
stance, by the Missouri Eiver, perhaps it could not be said that the 
people north of the river were not as well protected as those on the 
south. 

Mr. Black. — Perhaps not. The protection of both would be 
equally bad. Of two appellate courts, equal in authority, and both 
exercising final jurisdiction within their respective territorial limits, 
it could not be said that either was supreme. They would be 
local courts, with unlimited power, like those which Georgia suffered 
under, and only a little better by being two instead of five. But this 
is mere speculation. In fact, and in truth, this St. Louis Court of 
Appeals is local, and inferior in its origin, object, and purpose ; in its 
nature and character ; in the mode of appointing its judges ; in the 
source of their compensation, for they are paid as well as elected by 
the exscinded counties, and not by the State ; it is local by its very 
name. It is not made, and can not be expected, to administer the law 
of the land — the lex terrce — which prevails elsewhere in the State. 
That it hears causes by way of appeal, does not make it less danger- 
ous to the rights of citizens than it would be if it had only original 
jurisdiction. Two local courts are not a whit better than one. If I 
want the laws of the State applied to my case, it is mere mockery to 
tell me that one judge of a city court is more likely to give it to me 
than another, both being under the same influences, and responsible to 
the same constituent body. 

If your honors will say that my client in this case shall have an 
appeal to the Supreme Court of the State, and thus get the equal 
protection of the law as there expounded, you will interpret the Four- 
teenth Amendment beneficently, according to its letter and spirit. 
And the judgment in this case will be consonant to all your past de- 
cisions on this subject, as those decisions are now universally under- 
stood. 



FORENSIC. 565 

THE McGARRAHAN CLAIM. 

BEFOEE SENATE COMMITTEE ON PUBLIC LANDS. 

Senators : The patience with which you haye examined the details 
of this case, and listened to the minute criticism of counsel upon 
every part of it, assures me that you will give your attention to the 
more general views of the subject which I have to present. Hear me 
for my cause ; believe me for the sake of justice, and have respect 
unto the testimony, that you may know the truth. 

What is it that the claimants desire Congress to do for them ? 
The memorial sets forth as a fact that on the 14th day of March, 
1863, a patent was regularly issued, signed by the President, sealed, 
recorded in the General Land-Office, and in all respects completely 
executed, except that it was not countersigned by the Recorder ; that 
on this instrument the patentee brought suit and failed to recover, 
solely by reason of the Recorder's failure to sign it ; that this defect 
being merely clerical, he prays you to give him the remedy of a stat- 
ute which will either compel the Recorder to affix his signature nunc 
pro tunc, or else declare the patent to be good without it. There is a 
prayer also for general relief. 

I admit that if he was then entitled to a patent and he got a de- 
fective one, it ought to be amended ; if the patent was improperly 
refused to him a new one ought now to be issued, and the Land-Office 
is bound to do this without legislative compulsion. If we assume that 
Gomez was the honest and true owner of the land — that his claim had 
been heard and finally determined in his favor by the proper judicial 
authorities, and that a regular patent would have been but a due exe- 
cution of the decree in his favor — then we can make no objection to 
anything which will secure him or his assignees in their just rights. 
The arbitrary refusal of a ministerial officer to execute the judgment 
of the court can not deprive the claimant of property which the 
judgment proves to be his. 

But you know from the conclusive evidence of the records that he 
had no decree in his favor ; there was a decree against him, and there- 
fore he had no more title to the land in question than he had to this 
Capitol. His claim was fraudulent and void. That is a fixed fact, 
immovably established by the solemn judgment of the Supreme Court. 
The final decree, made by the tribunal of last resort, nullified all pre- 
vious patents, and made it impossible for any subsequent -patent to be 
lawfully issued. The question, therefore, whether a patent was made 
out and signed in 1863 or not, has no importance whatever in its bear- 
ing upon the legal rights of these parties. Whether signed or un- 
signed, it was equally worthless. 

The treaty of Guadalupe Hidalgo transferred the public domain 
in California to the United States, coupled with a stipulation for the 



566 FORENSIC. 

protection of all private titles lawfully made by Mexico, previous to 
the conquest. After the war many titles to the most valuable lands in 
the country were set up. Some of them were true, and many were 
false. To carry out the terms of the treaty in good faith, and at the 
same time protect American settlers, Congress provided for a Com- 
mission to ascertain, settle, and determine what claims were false, and 
what were true. Any person having a Mexican claim to land might 
come before the Commission and show his title — that is to say, insti- 
tute a suit against the United States for the confirmation of his claim. 
Either party (the claimant or the Government) might appeal from the 
decision of the Land Commission to the District Court, and from 
the District to the Supreme Court. It is manifest that this raised 
a purely judicial question. Beyond all doubt the legal and equitable 
rights of the parties depend solely upon the determination of the 
court in which the suit is instituted, or to which it is taken by appeal. 
The final decree is as a plea on estoppel, and as evidence conclusive 
upon the parties to the record, and upon all persons claiming by, 
through, or under them. 

After a claim has been confirmed by the court of last resort, or 
after it is confirmed by one of the inferior courts, and the United 
States acquiesces in the decree, on the ground that the claimant's title 
is good and ought not to be further contested, a survey may be made 
and patent issued. But a survey or patent is wholly illegal, and 
therefore wholly void, if made or issued pending the proceedings for 
confirmation, or after the final rejection of the claim. The law which 
authorizes a survey and patent expressly confines the power to cases of 
finally confirmed claims. Knowingly and willfully to issue a patent 
pending the proceedings to confirm it, or after the rejection of it, is 
certainly a criminal misdemeanor, for which the officers who commit 
it might be indicted and impeached. 

If you find yourselves troubled with doubts on this subject, your 
minds will be settled by looking at the opinion of Chief-Justice Taney 
in United States vs. Pacheco (20 Howard, 261). But the point is too 
clear on principle to need the support of authority. It can not be 
that a patent professing to be founded on, and authorized by, a judi- 
cial decree is valid if inconsistent with the decree. 

The patent and the survey are ministerial acts. They are not 
judgment, but execution. Like all executions, they must follow the 
judgment and conform to it strictly. They must include no land, 
except that which the decree awards to the claimant. No plaintiff in 
a common law action of debt has ever thought that he could take out 
a fieri facias before he got judgment, or make a levy after judgment 
for the defendant. Yet he might do so as legally as this claimant 
could get a patent uj)on his rejected claim. 

Gomez brought suit against the Government for a certain tract of 



FORENSIC. 567 

land which he averred had been granted to him by the Mexican Gov- 
ernment. The Land Commission rejected his claim, and he appealed 
to the District Court. There he got a decree of confirmation, from 
which the United States appealed to the Supreme Court. In the Su- 
preme Court the claim was rejected. He says now that while the 
question of title was sub judice, and before its final rejection, he got a 
patent from the Land-Office. What if he did ? The patent was void. 
It was in direct conflict with the decree. It had no more force than a 
blank piece of parchment. What is the use of inquiring whether a 
paper was formally executed or not, wlien, in either case, it is equally 
good for nothing ? 

I do not admit that a patent was ever made. I only concede the 
allegation to be true for the purposes of the argument. I insist ujion 
it that, patent or no patent, our rights and those of the claimant were 
exclusively settled in the courts. 

Perhaps the suggestion of the memorialist, that he failed in his last 
suit solely because the patent was not countersigned by the Recorder, 
is entitled to some explanation. The action referred to was ejectment 
brought by McGarrahan against the New Idria Company. At the 
trial the plaintiff showed what he calls the record of his imtent, and 
the defendants, relying less on their own strength than on the weak- 
ness of their adversary's case, did not produce the record of the final 
decree, or any other proof of title in themselves. Practically, the case 
went to the court on a demurrer to the plaintiff's evidence, and the 
question of law raised was whether the patent or the record thereof as 
exhibited did propria vigore vest any title in the plaintiff. This ques- 
tion divided itself into many points, which were elaborately debated. 
The State court decided it against the plaintiff, for the reason that 
the patent appears on its face, and by its own recitals, to have been 
issued pending an appeal in the proceeding for confirmation. The 
plaintiff took a writ of error to the Supreme Court of the United 
States, where the judgment was affirmed for a different reason, name- 
ly, that the draft of a patent is nothing without the signature of the 
Recorder, which this one did not pretend to have. In the State court 
the patent was held to be void ; in the Federal court it was decided to 
be no patent at all. The two courts began the consideration of the 
case at different ends of the subject-matter, and each at the first step 
found a defect in the paper relied on so fatal that it was unnecessary 
to go further. 

How would this justify an act of Congress to make them a patent 
now ? If they got one that was void, because it was based on a fraud- 
ulent grant, will you take it up and give them another which must be 
equally void for the same reason ? If they got none, will you pay a 
premium on their failure by making it falsely appear to have been a 
success ? Remember, you are asked to give them a title for land 



568 FORENSIC. 

which they and you and all of us know to be the property of other 
persons. The decree of the Supreme Court settled that, and you can 
not unsettle it, or rejudge the justice that was done there. Our right, 
resting on that solid foundation, can not be moved by the united 
strength of forty thousand patents, signed by as many Recorders. 

At the same time the same court, and that the highest in the na- 
tion, adjudged the title now urged against us to be fraudulent and 
void. That destroyed the case past all hope of revival. McGarrahan 
himself admits, in one of his letters, that it was killed in the Supreme 
Court. It was not only put to death ; it was condemned to be hung 
in chains ; it was gibbeted in the face of the world as a wretched 
fraud. There is no power in this country that can take it down. 

When I implore you not to interfere with our rights thus legally ac- 
quired, I am asking only that you observe a rule of property regarded 
as sacred by every civilized Government, and absolutely necessary to 
the security of all the people. An act of Congress to take this land 
from the owners, who hold it under the United States, and give it to 
others who have no claim, except what is based on an adjudicated 
fraud, would be an outrage upon private rights so shocking and so 
shameful that it is not to be thought of for a moment. No act of 
Congress, having such a wrong for its ultimate object, can ever be car- 
ried into effect until the Constitution is wiped out, and the courts 
cease to perform their functions. 

But, though we are legally safe against any attempt to legislate us 
out of our property, it would cost us much inconvenience to defend 
our rights against such an adversary as ours, if armed with even an 
unconstitutional act of Congress. The slightest encouragement from 
you would impel him to another series of suits. This would indeed 
be vanity, but it would also be great vexation of spirit. 

Mr. R. P. Hammond, specially appointed for that purpose, went 
to the ground, and ascertained how it was occupied. He has reported 
officially that many persons, besides the New Idria Company and its 
employes, are settled within the limits of the claim as now defined. 
Their holdings have probably but little value, except what their own 
improvements have given to them. They have no representative 
here ; their poverty makes them defenseless. In the name of all these 
persons, and for the sake of others in like condition, I beg you to 
speak with solemn emphasis, when you assure them that you can 
not and will not subject their homes to the sack and pillage of these 
fraudulent claimants. 

Thus far I have spoken only of the legal relations existing be- 
tween the claimants and the alienees of the United States. I deny 
your power to take away the land to which private parties have 
acquired rights from the Government. But so far as respects that 
portion which up to the present time remains unsold and unoccupied. 



FORENSIC. 569 

it is public property, and you can dispose of it as you please. You 
may bestow it on these claimants as a gratuity, if you think they de- 
serve it. 

But they do not deserve it. We protest against a legislative grant 
even though it may not affect, or be intended to affect, any individ- 
ual rights. Perhaps the Supreme Legislature of the nation has power 
to gratify the rapacity of these people by robbing the Government of 
its lands not already disposed of to others, but such an act is forbid- 
den by moral considerations which ought to be as strong as any con- 
stitutional interdict. 

AVho are these claimants, and what are the merits on which they 
base a demand for the special intervention of Congress in their be- 
half ? We shall see. 

The original claimant was Vicente P. Gomez. He first set up a 
title in himself as the immediate grantee of the Mexican Government. 
In his name the proceeding to confirm it was instituted and carried on 
through all its stages. But at a very early period he made a deed 
conveying an undivided half to Pacificus Ord. Gomez and Ord were 
then equal partners, and so continued until Gomez sold his remaining 
interest to McGarrahan. Since that time Ord and McGarrahan have 
prosecuted the claim for their joint benefit, the latter being more 
active, but always recognizing Ord's right, and holding him respon- 
sible for half the expenses. McGarrahan himself swore in your pres- 
ence that Ord never released his share, and that he had acted for him 
under a power of attorney. Whatever they get out of the claim by 
the present proceeding, or any other, must enure jointly to Ord and 
him both. They are hunting in couples, and the prey they pull down 
must be divided between them. 

Now we assert that neither Gomez, nor the firm of Gomez and 
Ord, nor the firm of Ord and McGarrahan, nor any member of these 
partnerships, ever did or suffered anything which entitles them to leg- 
islation of any kind for their relief. 

I will give the story of their wrongs as strongly as they themselves 
have ever recited them, condensing their voluminous arguments, peti- 
tions, and letters into as few words as possible, and leaving out the 
coarse and violent language in which they have clothed their com- 
plaint. 

Gomez, they say, had a good Mexican title to the property in ques- 
tion. In the integrity of his heart he petitioned the Land Commis- 
sion to confirm it, and, failing there, he appealed by his proper 
attorney to the District Court, where it was legally confirmed. This 
just decree, thus righteously obtained, ought to have stood unmoved as 
a final adjudication between him and the Government ; but it was 
not permitted to remain undisturbed. On the contrary, the judge de- 
clared that he had been imposed upon, struck it from the record as a 



670 FORENSIC. 

fraudulent nullity, and gave notice to the claimant that he must show 
his title before it could be confirmed. This judge died, and was suc- 
ceeded by another more upright Judge, who reinstated the decree of 
confirmation. The enemies of the claimant then went the extreme 
length of appealing to the Supreme Court. The Supreme Court 
wickedly sustained the appeal in the face of the claimant's protesta- 
tions. The judges forced him to face the proofs, heard the cause, 
and after full debate unanimously decided his claim to be fraudulent 
and void. This decision was false. The judges were corrupt, and 
their opinions in the case were full of lies. 

Such are the grievances he suffered at the hands of a dishonest 
judiciary. But by his account the Executive Departments were 
harder on him still. When his title was laid before the Attorney-Gen- 
eral it was so perfect, and accompanied by jjroofs which showed its 
genuineness so clearly, that all opposition to it should have been in- 
stantly withdrawn. But that officer refused to perform his obvious 
duty. Instead of aiding the claimant to get justice, he commenced 
a system of malignant persecution against him. The Attorney-Gen- 
eral's office, through several administrations and under many heads, so 
far from admitting the known truth, that this was an honest claim, 
denounced it as an impudent fraud. Not only was the machinery of 
the office used to defeat it, but the heads of the office made common 
cause with the alienees of the United States, and accepted the aid of 
their counsel in the wicked work. They insisted upon taking the 
case into the Supreme Court, where the claimant was utterly unwill- 
ing to go. They argued it there, and furnished the facts and reasons 
which the judges used in their lying opinions as an excuse for their 
corrupt decrees. 

But worse than all this was the conduct of the Interior Depart- 
ment. The claimant was fairly entitled to a patent. He was not 
bound to await the determination of the courts. It was the duty of 
the Land-Office to let him have it at once. He did get it fairly, hon- 
estly, and without any kind of misrepresentation, false token, trick, or 
device. The patent was made out, signed, sealed, executed, and re- 
corded. It was a perfect muniment of his title. But it was withheld 
from him, and a subsequent Secretary had the hardihood to tell him 
it had never been signed. Upon examining the paper it was found 
to have been mutilated by detaching the two last pages on which the 
signatures were, and substituting two other pages without signatures. 
In other words, the claimant was the victim of an infamous forgery. 

The history of the claimant's grievances has been made up so 
plausibly, persisted in so long, and repeated so often, that some good 
but credulous men in Congress and elsewhere have believed it to be 
true. Acting upon their faith, they have joined in the demand for 
reparation. They have given all their sympathies to the injured par- 



FORENSIC. 571 

ties, and their wrath has waxed hot against the oppressors who have 
**held them sounder fortune." If you believe it you can not be 
blamed for proposing some compensation to the sufferers out of the 
public lands or the public moneys. 

But their whole story, through and through, is transparently 
false — false in the beginning, middle, and end — false in the aggregate, 
and false in every part. It is not a mixture of fact and falsehood — 
truth dashed and adulterated with lies — it is purely false : made out 
of the whole cloth without one particle of honest material in it. 

The fundamental fact that Gomez had a grant is a mere fabrica- 
tion. The allegation is not only unsupported by any legal, sufficient, 
or satisfactory evidence, but it is contradicted by overwhelming 
proofs. The pretense of a grant lies at the foundation of their case, 
and that being swept away, everything built on it must go to ruin 
along with it. 

I will not repeat to you now, in detail, the reasons for believing 
the claim to be a false one. I have given them often already, and 
they are on record. You will find them set forth in the opinions of 
the Supreme . Court. Several of my colleagues have gone over them 
in their arguments here. Even if they were not pointed out at all, 
you would readily perceive them from the record. It does not require 
any analysis of the evidence to show that it is all on one side. Xo 
unprejudiced man of average sense was ever taken in by it. No judge 
and no public officer that looked at it has ever expressed a doubt of 
its character. 

There were very many of these fraudulent land claims set up 
against the United States and their assignees. After the close of the 
war with Mexico, the discovery of gold, and the rush of emigration 
to California, the fabrication of Mexican titles for lands became a 
trade and a business, in which such men as Gomez, Abrego, and Mo- 
reno engaged with great assiduity. It seemed at one time as if the 
whole public domain, with all the improvements made by the settlers, 
would become the prey of these spoilers. Every growing city, every 
town of importance, the richest agricultural districts, the most prom- 
ising mines, all the sites necessary to guard or light the coast, were 
covered with these pretended grants ; and professional witnesses stood 
ready to swear that they were genuine. The duty of the public offi- 
cers to resist them was arduous but imperative, exacting severe labor 
and untiring vigilance. 

The claim of Gomez, just as he made it out and presented it to 
the Land Commission, had less to commend it than any other. Of 
all the frauds that came up, this was the plainest and easiest to expose. 
Either as Attorney-General or as private counsel, I became familiar 
with all these false claims, and I know whereof I affirm, when I say 
that this one had less claim to respect than any other. If you doubt 
37 



572 FORENSIC. 

this, take the rejected cases (they are all reported), and make the 
comparison yourselves. You will find that not one among them was 
better entitled to the steadfast opposition which I gave it, or the 
brand it got from Mr. Bates when he denounced it "a naked, impu- 
dent, and very clumsy fraud " ; and nothing ever was more just 
than the unanimous and stern condemnation it received from the 
court. 

'Did the claimants, Gomez, Ord, and McGarrahan, know it to be 
false ? Something depends on the answer you may give to this ques- 
tion. The faith of the claimant could not save the claim. But the 
moral aspects of the present case will be materially different if you find 
that, while these men were trying to get the claim allowed, they were 
perfectly conscious of its fraudulent nature. That makes them 
guilty of a high criminal offense, defined and punished by the act of 
18th May, 1858. (Revised Statutes, sec. 2471.) The penalty is im- 
prisonment at hard labor, not less than three, nor more than ten 
years, and a fine not exceeding ten thousand dollars. Have they 
brought themselves withiji the provisions of this statute ? If yes, 
then the Government is not only not in debt to them, but, fer contra, 
they each of them owe the Government at least three years of service 
at hard work in the penitentiary. The account is heavily against 
them on this score alone, to say nothing of others. 

Gomez did most certainly know that he never had a grant. If he 
had one, he made it himself, and did not show it for fear of detection. 
It is curious to note how cautious he was about swearing on this point. 
His own oath, showing the existence and loss of the paper, and his 
consequent inability to produce it, was necessary to legalize parole 
evidence of its contents. But he would not lay this foundation. He 
left the case on the inadmissible testimony of his professional wit- 
nesses. 

After he had divested himself of his whole interest by his convey- 
ances to Ord and McGarrahan, he was a perfectly competent witness, 
yet he did not testify. He made several ex parte affadavits on inci- 
dental matters, but he never would assert the genuineness of the 
grant. He was ready with his pen in the fabrication of title-papers, 
and handy with his oath in swearing them through ; but he could not 
always make them fit. He had been caught several times before, and 
he had learned to be careful. 

Who was it that clandestinely placed the bogus petition informe 
and deseno among the Mexican land papers of the Surveyor-General's 
office ? That they were not truly a part of the records is perfectly 
certain. That Gomez secretly put them there is equally clear. They 
were altered by Gomez while the case was pending before the Land 
Commission. At the institution of the suit, he laid before the Com- 
mission a deseno which he said he had borrowed from the office and 



FORENSIC. 573 

was part of his expediente on file among the archives. Afterward the 
papers were produced, and behold ! the deseno was totally different. 
This last one was traced back to its origin, and identified as an old 
map of another tract two hundred miles distant, but which had been 
thrown aside. You will look at the sworn statement of Mr. Hopkins, 
keeper of the archives, and if the facts there do not compel you to 
believe that this unfinished expediente was a fraud and a fabrication, per- 
petrated by Gomez himself, there is an end of all reasoning on cir- 
cumstantial evidence. 

Did Gomez communicate his guilty knowledge to Ord ? Upon 
that question Ave have no direct evidence, but there can be no reason- 
able doubt that in the beginning there was a plain bargain between 
these two men. Gomez was to get up the false title, and Ord was to 
get it confirmed by betraying his trust to the United States. The 
risk, the labor, and the moral atrocity being about equal, the fruits of 
the enterprise were to be equally divided between them. 

Gomez could not have concealed the actual character of this claim 
from Ord if he had tried. Ord was a lawyer who knew the rules of 
evidence and had some experience in the examination of these Mexi- 
can titles. This thing could not impose upon him for a moment. 
His consciousness that it was not only false, but nakedly and palpably 
false, was betrayed at every step he took. 

After the claim was rejected by the Land Commission it became 
necessary to appeal. Ord, the District Attorney, took the appeal 
himself against the Government which he professed to represent ; but 
he did it in the name of other attorneys, who were not concerned in 
the cause, and knew nothing about it. His petition for review, with 
the names of Sloan and Hartman appended to it, was a manifest for- 
gery. Then he got Mr. Hartman to move the reversal of the Land 
Commissioners' decree, and a substitution in its place of a decree con- 
firming the claim. Then Mr. Ord came forward, and in the name of 
the United States, whose official representative he was in that court, 
declared that the Government had no objection to the confirmation. 
Thus, by a series of criminal manoeuvres, he became dominus lites on 
both sides, and got a decree in his own favor against the public, who 
was his own client, in a case plainly fraudulent, without subjecting it 
to the scrutiny of any lawyer or any judge. 

This was, beyond all comparison, the worst offense ever committed 
in this country against the administration of public justice. The de- 
cree so obtained was a mere nullity. I mention it now, however, to 
show that Ord, as well as Gomez, knew the original title to be false. 
If he had had the least faith in the genuineness of his papers, or the 
credibility of his professional witnesses, would he have resorted to such 
deception, falsehood, and forgery to prevent them from being exam- 
ined ? Is it morally possible that he would run such heavy risks to 



574 FORENSIC. 

cover up and conceal from court and bar the merits of a claim which 
he believed to be honest ? 

But McGarrahan abjures all connection with the fabrication of the 
title or with the imposture practiced by Ord upon the court. He al- 
leges that he bought into the business after these frauds were commit- 
ted, and being an ignorant as well as an innocent purchaser, it is a 
hardship upon him to lose his investment, small though it was. He 
states here upon oath that he bought upon a "certified transcript 
under the seal of the court," by which he means that he took the title 
in good faith, believing it to be sound because it appeared by the rec- 
ord to have been regularly confirmed by the District Court. 

This account of his original connection with the case was given 
when he first appeared in the contest, and it has been adhered to ever 
since. If it were true it would not make his right in law or equity 
one whit better. The actual owners of the property are not to be 
plundered by means of a fabricated and false title, no matter in whose 
hands it may be, nor how it came there. McGarrahan could take 
nothing but the title of Gomez, with all its imperfections on its head. 

But I do not pause to discuss the principle. I deny the fact. 
There is not one word of truth in the allegation that he bought igno- 
rantly. The record flatly contradicts the whole story, and shows that 
at the time of his purchase there was no decree in the case except the 
decree of the Land Commission rejecting the claim. A glance at the 
dates will show you this. The deed from Gomez to McGarrahan was 
made on the 22d of December, 1857. The decree which Ord got, re- 
versing that of the Land Commission, and substituting in its place 
another confirming the title for three leagues, was made and put on 
record— when ? On the 7th of January, 1858. This was abandoned 
(or perhaps I should say enlarged), and another confirmation entered 
for four leagues on the 5th of February, 1858. Can anything be more 
absurdly false than the allegation that he bought it in December on 
the faith of the approving decree, which was not made until the fol- 
lowing January ? 

When he bought he may have had a certified copy of the record as 
far as it existed at that time. If he had it gave him distinct notice 
that he was buying a worthless title, rejected by the tribunal having 
jurisdiction to decide upon its validity. It was a dead claim then, 
and he certainly would not buy it in that condition unless he saw 
some hope of reviving it by getting a confirmation on appeal. No 
such hope could be inspired by an examination of the title itself. If 
he looked into the papers and proofs he must have seen that no judge 
could respect them as truthful and genuine. 

He may also have known (and he did know, for the record on the 
5th of June, 1857, discloses it) that Ord intended to get the decree of 
the Land Commission reversed, and a decree of confirmation by the 



FORENSIC. 575 

District Court. But he also knew the facts which would make any 
such decree a mere nullity. He knew that Ord was attorney on both 
sides, and that there was an agreement between Ord and Gomez for 
Ord's corrupt services in getting the confirmation. This agreement 
was referred to in his deed, and he held his right subject to it. In 
other words, he made a covenant, running with the land, that Ord 
should receive the wages of his iniquity according to the measure 
agreed upon by Gomez. It is as plain as day that McGarrahan paid 
his money, not for the worthless title rejected, condemned and killed 
by the Land Commission, but for Ord's promise to betray the United 
States, and trick the court into a confirmation. 

McGarrahan having stepped into the shoes of Gomez, he held Ord 
to his engagement, and held him hard. Within sixteen days after he 
came into the case, Ord consummated his imposture upon the court. 
A decree drawn up by the District Attorney, under the pay of the 
claimant, was adopted by the judge, and formally entered of record, 
confirming a title which stood no earthly chance of being approved on 
a fair hearing. 

This was McGarrahan's own fraud, practiced for him by his recog- 
nized agent, attorney, and partner, in pursuance of an agreement to 
which he had made himself a party, and for a compensation which he 
had covenanted to pay. As soon as it was finished, he claimed it for 
his own, and stood upon it with both feet, as the only foundation of 
what he calls his equity. His every struggle, through the whole ju- 
dicial contest, was to hold that false and void decree in the place 
where he put it. All his brutal abuse of public officers, of courts, and 
of counsel opposed to him, has been provoked by their efforts to set it 
aside, or to reverse it. 

How vain it is to call this man an innocent purchaser, or to excuse 
him for his subsequent crimes by supposing that he was deluded into 
the first one ? He was not deluded. He made love to the filthy busi- 
ness, and went to it with his eyes wide open. 

His later acts all show the animus with which he began. He and 
Ord have ever since been trying to maintain their position by means 
as dishonest as those which they used at the beginning. 

Mr. Stanton, being then in California, and hearing of this decree, 
took it upon himself to move that it be opened. It was afterward 
stricken from the record by Judge Ogier, upon satisfactory proof that 
it had been obtained by willful misrepresentation. This was most 
violently opposed, and staved off for a long time on one pretense and 
another. Why was this opposition? It could only mean that the 
claimants were afraid of a hearing. If they believed that their title 
would bear examination, thoy would gladly have submitted it to the 
test. 

Judge Ogier died, and Judge Haight was appointed in his place. 



576 FORENSIC. 

The new judge, instead of hearing the case, and deciding it upon its 
merits, as his predecessor had resolved that it should be, declined to 
give the United States any hearing at all, but reinstated the fraudu- 
lent decree as good and valid. He expressly declared the decree to be 
a base fraud — he had no doubt of that — but the court could not strike 
a fraud from the record after the end of the term at which it was com- 
mitted. However, he said, the United States have an appeal, and the 
Supreme Court will do justice. An appeal was taken, and duly al- 
lowed. Then he came back with a sharp turn, and, at the instance 
of the claimants, he revoked his order allowing the appeal. When the 
United States, denying his jurisdiction to decide this question, de- 
manded a transcript to be used in the Appellate Court, he forbade the 
clerk to make one, or to let it be made by the District Attorney. 

To a Senator, or to anybody else who has read even the horn-books 
of the law, I need not say that this conduct of Judge Haight was a 
violation of his duty. When it is considered that all these preposterous 
rulings were made in the interest of what the judge himself admits to 
be a gross fraud, and to prevent the United States from getting an 
honest trial, either below or above, it becomes difficult to excuse them. 
The charity that thinketh no evil can scarcely believe that so many 
palpable blunders could be made in one case unless the judge was un- 
der some evil influence. If McGarrahan's explanation came from a 
credible source it might be a solution of the mystery. He says in a 
letter that Judge Haight was plowed with before his appointment ; 
that in fact he got his commission with the understanding that he 
would decide for the claimants. But McGarrahan's mendacity takes 
all value from his statements except as they are confessions of his own 
guilt. 

With much tribulation the United States got a copy of the record 
in separate pieces, which being put together, the District Attorney 
certified them under the act of Congress, and the cause came up in 
spite of all efforts to prevent it. 

Before I go further on this line it is necessary to revert to some 
other means which the claimants adopted of* propping up their false 
decree. 

Very soon after Mr. Stanton's motion was filed to open Ord's de- 
cree, and while it was pending undetermined, McGarrahan required a 
copy of the record, which was made out truly and sent to him. But 
this true copy did not suit his purpose, because it showed that no ap- 
peal had been taken, and it did include Stanton's motion. He sent it 
back, and directed that another should be made, regardless of expense ; 
suggesting that the motion should be omitted and an appeal be in- 
serted. This was done, the alteration was made, and so McGarrahan 
became possessed of a transcript conveniently false. I say it was false 
because the omitted motion is known to have been on the record long 



FORENSIC. 577 

before, and, in fact, copied as a part of it in the first transcript. That 
no appeal had been taken or allowed is clearly shown by the original 
record. Judge Ogier declared judicially that no appeal had ever been 
granted by him ; the clerk himself deposed that no appeal was found ; 
and the Supreme Court, after an elaborate examination of the subject, 
held, as matter of fact, that the contrary allegation of McGarrahan 
was untrue. 

This false transcript was brought up to the Attorney-General, 
coupled with a request that he dismiss the appeal. That officer, see- 
ing that an appeal was certified on the transcript, and not suspecting 
its verity, examined the title. Finding it wholly defective he refused 
to let it pass as good. 

Failing there the claimant took his transcript to the Supreme 
Court, where the rule gave him a right to docket and dismiss for want 
of prosecution in time. The court, like the Attorney-General, was 
unsuspicious of any deception, and the trick upon it was temporarily 
successful. An order was made to dismiss the appeal, and a mandate 
issued to proceed as upon a final decree, "the said appeal notwith- 
standing." 

When this order was brought to the court below, the judge said he 
had never granted an appeal in the case. On the contrary, a motion 
was pending to strike out the decree, and give the United States a 
hearing before himself. The claimant applied for a mandamus to en- 
force the mandate, and the Attorney-General moved to revoke it. The 
Supreme Court, after argument on both sides, held that the decree of 
confirmation was obtained by a false contrivance ; that there never 
had been an appeal from it, as McGarrahan's transcript falsely certi- 
fied ; and that, therefore, the mandate ought to be revoked. If you 
want a verification of these statements, or a fuller detail of them, I 
refer you to Judge Waynes's opinion, which you can not read without 
being convinced that the two claimants, McGarrahan and Ord, are as 
sorry a brace of knaves as one fraud ever yoked together since the 
world began. (United States vs. Gomez, 23 Howard, 326.) 

To hold up the decree, and cover the rottenness of their title, the 
claimants demanded another writ of mandamus to compel the court 
below to stop the investigation of its character, or open it for a hear- 
ing which might let in the light. And yet another mandamus they 
asked for against the Surveyor-General, to make a survey at once with- 
out waiting for the further proceedings of the court. These move- 
ments failed, of course, and I only mention them now to show the des- 
perate strategy to which the claimants were driven by their fear of a 
fair trial. 

McGarrahan, with a power of attorney from Ord, organized the 
Panoche Grande Company, with a capital of five millions (afterward 
increased to ten), every cent of it consisting in land to which he had 



678 FORENSIC. 

not a shadow of title, and which was not intrinsically worth the twen- 
tieth part of the price he put upon it. With the stock of this com- 
pany, divided into convenient shares, he rewarded his blowers and 
strikers, and by selling it to ignorant dupes he raised enough money 
to keep himself personally equipped for the contest. 

The whole struggle at that time was an effort on one side to get an 
impartial hearing, and on the other to hide the original title away 
under the decree already obtained. The claimants succeeded in the 
District Court, and for a long time, and by many devices, they pre- 
vented the United States from getting a transcript of the record. 
When at last the Supreme Court got possession of the case, the claim- 
ants, instead of coming up to vindicate the title, assaulted the appeal 
with complaints of irregularity, and denied the jurisdiction of the 
court to determine the merits, or even to look at them. 

When you reflect that the taking of this appeal is charged as a 
grave offense — that all public officers and private counsel who had any- 
thing to do with it are bitterly maligned for their respective shares iu 
it — and that the judges themselves are abused for sustaining it, you 
will feel bound to look somewhat narrowly into the reasons pro and con. 

Why was it improper to take this appeal ? No man with sense 
enough to know his right hand from his left will say that an appeal 
from one court to another is necessarily wrong. That the Attorney- 
General and the counsel who were aiding him did a disreputable thing 
when they brought up from the District Court a decree which they 
believed to be erroneous, with the object of having it reviewed and 
reversed by the proper appellate tribunal, is a proposition which no 
human being will make in the abstract. On the contrary, all men will 
acknowledge that it was their plain and unavoidable duty. But the 
integrity of this appeal is impugned on the score of irregularity in 
manner and time. 

Those objections were urged before the Supreme Court on a motion 
to dismiss, repeatedly argued by the ablest counsel in the country. 
You will find them fully set forth in 1 Wallace, 694, and in 3 Wallace, 
758. If you will read our answer, imperfectly given on page 698 (1 
Wallace), and follow that by a glance at the two opinions of the court, 
you will find it imjDOSsible to doubt the perfect propriety of the judg- 
ment which sustained the appeal. 

But to save you trouble I will here give the objections and the rea- 
sons upon which they were overruled, in a form as compact as possible. 

1. Five years had run out between the decree and the appeal. The 
record showed this to be untrue, as anybody might see who had arith- 
metic enough to count his own fingers. 

2. The Judge had revoked his alloivance of the appeal. True : but 
the Judge had no power to do this. The appeal being once allowed, 
all jurisdiction passed into the Appellate Court. 



FORENSIC. 579 

3. Tliere was no citation. A citation was not needed, the appeal 
being taken within the term at which the decree was reinstated, and 
upon notice to the appellee that an appeal was intended. 

4. The record was not filed in good time accorditig to the rule. 
But the delay was intentionally caused and contrived by the unlawful 
acts of the claimants themselves, and the improper doings of the clerk 
and the Judge, under the instigation of the claimants. 

5. The transcript of the record was incotnplete, and not certified 
properly. It was certified according to the act of Congress, and if 
anything was omitted they could suggest diminution, and take a cer- 
tiorari to bring up what was wanting. 

What could the court do but sustain the appeal ? It was a strictly 
legal exercise by the United States of a clear right. It was properly 
used as the only means left to get the justice which had been sold 
away and denied in the court below. The claimants' real objection 
was that if it was heard on its merits it must necessarily result in their 
defeat. 

When the case was reached for argument fresh counsel appeared, 
and insisted upon being heard anew upon the motion to dismiss, and 
they were fully heard again. They did not change the opinion of the 
court, nor shake the faith of a single judge in the right of the United 
States to get a fair hearing on the merits. 

I do not speak merely from memory, but from the report as well, 
when I say that their argument on the title was a confession of its in- 
validity. They could not stand up and say on their professional re- 
sponsibility that they believed Gomez ever had a grant, or that the 
confirmation obtained by Ord was not fraudulent. But they appeared 
for McGarrahan and told his story (an old story even then), that he 
was an innocent purchaser without notice of the fraud. Therefore the 
false title of Gomez should be pronounced good, and the fraudulent 
decree of Ord should be permitted to stand. This proposition was 
untrue in point of fact, and totally unsound in law. The court de- 
cided the issue before it, which was whether Gomez had a title or not. 
And of course it was decided according to the law and the evidence. 
The claim was rejected as a mere fraud, unsupported by any decent 
show of evidence in its favor. 

But suppose the claimant to have been honest, the papers genuine, 
and the confirmation just : that would give him no right to the land 
which he is now seeking to get. What he is grasping at here is not 
what he clamored for in the courts, but a totally different thing. Of 
all his false pretenses the most impudent is that which changes the 
location of his claim from the place where he put it in his judicial 
prosecution of it to another and far distant region of the country. 

In the petition of Gomez to the Departmental Governor ; in his 
petition to the Land Commissioners for confirmation ; in the decree of 



580 FORENSIC. 

confirmation itself, as manipulated by Ord ; in the conveyances made 
by Gomez to Ord and McGarralian — the land is described as lying and 
being at a certain place, well defined by boundaj'ies given with more 
than common precision. Those boundaries are the lines of two 
ranches on the north and south, which belonged respectively to Don 
Juan Ursua and Don Francisco Arias, and on the other sides certain 
hills and plains are given as limits. By the deseno with which he 
accompanies his petition to the Commissioners, he shows exactly the 
local relation of the land he claimed with the two ranches mentioned. 
He exhibits his tract as lying between those of Arias and Ursua, and 
abutting directly upon both. That was the land claimed by Gomez, 
by Ord, and by McGarrahan, all through the judicial proceeding. 
But the tract that Gomez professed to want, "for the interesting busi- 
ness of agriculture," did not answer the purpose of McGarrahan. He 
had cast his covetous eyes on a mine in the mountains, twenty-four 
miles away from the Gomez ranch, and he unblushingly moved the 
claim over to take it in. 

I have not stated this point with any intent to discuss it. That 
has been done already. The argument of Mr. Evarts before the 
House committee of 1870 is strikingly clear. Mr. Burdett has evis- 
cerated the documents and analyzed the evidence on this part of the 
case with unequaled power, and has held it up in so strong a light 
that no further exposure is needed. The ofiicial map of the country 
is itself an ocular demonstration, and, taken in connection with the 
depositions of the Surveyor-General, and other witnesses who describe 
the topography of the ground, it puts an end to all controversy. 
There you see where the two ranches are which the confirmation calls 
for as boundaries. The hills and the plains are there also, and twenty- 
four miles away from them you see the mountains where the quick- 
silver mines are situated. 

As matter of law and fact nothing can be more incontestable than 
this : That the deseno, the papers produced before the Commission, 
the grant, if there ever was one, and the conveyances between the 
parties, all fix the claim at one place, and anchor it fast to the two 
ranches called for as boundaries. The decree which they made them- 
selves does not pretend to give them any ether land. Suppose it to be 
honest and still standing in full force, it authorizes no survey or loca- 
tion, except one which adjoins the two ranches aforesaid. These calls 
being answered, the survey might be extended toward the plains and 
the hills, so as to include the proper quantity in a compact form. But 
even for quantity the survey could not go beyond these limits. 

Mr. Upson, the Surveyor-General, has described in his testimony, 
and marked on his map m green, the exterior limits described in the 
decree. They include about seventy thousand acres. This survey, 
correctly laid down, according to the decree, on the side adjoining 



FORENSIC. 581 

Arias and Ursua, would leave out about fifty thousand acres on the 
other side of the green space. 

Suppose this to be (what it is not) a floating grant which might be 
laid down anywhere within those limits, at the election of the grantee, 
he could not elect to include a mine or a settlement, or a purchase 
lawfully made by another person, within the same exterior lines, before 
the election of the grantor was signified. If, therefore, the New Idria 
Mine were in the green space, the claimants could not include it in 
their survey. The owner of a floating grant can not wait for an in- 
definite time without taking possession, or making a survey, or other- 
wise indicating where his location is to be, and then take a particular 
part of it to which special value has been given by the improvements 
of other persons. 

But these points are, in this case, merely speculative. The mine 
is not there at all. McGarrahan could only take it in by disregarding 
all calls and transcending all limits. If this grant could take the 
mine, any other grant, true or false, in the whole country could take 
it just as well. If he could go away from his specific calls twenty- 
four miles, he could go anywhere. He might as well have laid his 
claim upon the city of San Francisco. 

The decree was a fraud upon the United States, but this survey 
must bear the superadded infamy of being a fraud upon the fraud 
itself. 

By whom was all this brought about ? Nobody will pretend that 
McGarrahan himself did not do it. There can be no pretense of in- 
nocence here. He was after the New Idria Mine. His fabricated title 
and his fraudulent decree would do him no good unless he could also 
cheat in the survey. But to cheat in the survey was difficult as the law 
then stood. According to his own confession, he got the law changed 
by the use of influences grossly improper. By the use of similar in- 
fluences he procured the appointment of a Surveyor-General that he 
thought would suit him, and made his appointee the willing tool of 
his fraud. It is hardly necessary to say that, while this confession 
must be taken as true against McGarrahan himself, it cannot be justly 
allowed to injure the reputation of Mr. Beale, or the members of Con- 
gress whom McGarrahan accuses of aiding him. 

McGarrahan, by himself and his counsel, has spoken as if he be- 
lieved that this location of a fabricated claim twenty-four miles away 
from its calls had some technical virtue to strengthen his title. If you 
have ever been inclined to this notion, read the opinion of the Su- 
preme Court of California in the case of Maxwell vs. McGarrahan. 
(28 Cal. Eep.) It was wholly void, and something worse than void, 
not only because it was inconsistent with the decree of which it pre- 
tended to be an execution, but because it was unauthorized and unof- 
ficial — a private act done at the dictation of the claimant himself — 



582 FORENSIC. 

clandestinely and secretly — behind the back of the parties interested — 
in the teeth of the law which required that full notice should be given 
them. 

So far from strengthening his title by this false location of his 
claim, he completely destroyed it. He abandoned his claim to tlie 
four leagues adjoining Ursua and Arias when he went twenty-four 
miles away to get another tract which he thought more valuable. 

Let me illustrate this : Suppose a man to assert that he had an 
agreement with some ancient proprietor of the land on which the 
city of Washington stands, for a lot adjoining two other well-known 
lots, near Rock Creek, at the extreme west side of the town, and he 
brings a bill against the heirs of his vendor for a legal conveyance of 
the lot so purchased, describing it exactly. Pending the suit he takes 
a fancy that he would rather have another lot three miles away, near 
the Navy- Yard, which has been occupied for twenty years and has im- 
provements of very great value. He gets the lines of the latter lot 
run, and plot made furtively, unofficially, without authority or notice ; 
thenceforth he begins to demand a conveyance of that lot as a specific 
performance of his agreement for the purchase of the other. Are not 
these claims mutually destructive ? I submit to your judgment 
whether the false and fraudulent survey does not of itself cut the 
whole case up root and branch. 

McGarrahan, having a fabricated title and a fraudulent decree of 
confirmation for one tract of land, with a private survey for another, 
thought himself ready to demand a patent. The misrepresentations 
which he used at the Land-Office were a repetition of his former as- 
sertions, with one stupendous addition. He insisted that his title was 
good ; that his decree of confirmation was honestly obtained, and that 
his survey was on the ground described in the decree. He denied 
that any appeal was pending from the decree of the Circuit Court, or 
could be taken ; and he made the Secretary of the Interior believe it. 
But that was not all. He assured the Secretary that the cause had 
actually been brought before the Supreme Court ; that it was there 
argued by counsel on both sides (Ord for the appellees and Sloan and 
Hartman for the appellants) ; that after the argument the cause was 
submitted for final adjudication ; that thereupon the Supreme Court 
delivered its opinion and entered a decree confirming the claim to the 
extent of three leagues. I need not say that this is all purely false ; 
the truth is well known to be exactly the other way ; but it was be- 
lieved by the Interior Department, on the authority of ''a duly certi- 
fied extract from the minutes of the Supreme Court." No doubt 
such a paper was produced by McGarrahan, or else it could not have 
been recited in the draft of the patent. Who made it ? How was it 
gotten up ? Is it not one of the claimant's characteristic fabrica- 
tions ? 



FORENSIC. 583 

Influenced by these misrepresentations, the Secretary of the Inte- 
rior directed a patent to be drafted, reciting the grounds upon which 
he thought himself justified ; but it never was issued. Before it could 
be signed by the President, or the Eecorder, or otherwise finished, so 
as to give it any virtue or force, the Secretary, admonished by the 
Attorney-General that such an instrument would be void and illegal, 
directed it to be stopped. The unexecuted paper is there to this day. 

Afterward he applied to Secretary Browning for a patent, under 
the act of 1866. Here he admitted that his claim had been rejected 
by the courts. 

To bring it within the act of 1866, it was necessary to show : 

1. That he bought of a Mexican grantee in good faith. 

2. That he had used and improved the land, and continued in the 
actual possession of it. 

3. That such possession was according to the lines of Ms original 
purchase. 

4. That no adverse right or title existed out of the United States. 

5. That the land did not contain any mine of gold, silver, copper, 
or cinnabar. 

In fact, and in truth, he had bought in bad faith from one who 
was not a Mexican grantee, and who never pretended to be a grantee of 
the land for which a patent was asked. Neither he nor anybody under 
whom he claimed had ever used or improved it, or been in actual pos- 
session of it for an hour. Of his original purchase he never marked 
any lines at all ; he had ignored it utterly — abandoned it for other 
land ; and of that other he took no possession, had made no use, and 
never improved it to the value of a cent. There were rights and 
titles adverse to his, under which many persons were in possession for 
more than fifteen years. Finally, there was a mine of cinnabar on it, 
and to get that mine in the very teeth of the law was the direct pur- 
pose and sole object of the application. 

It was a mere matter of course that Mr. Browning should deny 
the absurd request. McGarrahan complained of the refusal to the 
local court of this district. The judges were induced to believe in the 
plaintiff's right ; they affirmed their own jurisdiction to vindicate it, 
and, after notice to Mr. Browning, they issued the mandamus against 
Mr. Cox without notice. Mr. Cox would not submit. He took a 
writ of error, and the cause was argued for him in the Supreme Court 
by Mr. Hoar, the Attorney-General, and by Mr. Ashton, his assistant. 
The judgment was reversed, and the reversal was accompanied by 
some remarks not flattering to the honesty of the plaintiff or the 
sagacity of the court below. All which you may read at your leisure 
in 9 Wallace, 298. 

It was after all this that he fell back on the patent of 1863. He 
professed to believe that the patent was signed, and when it was pro- 



58 i FORENSIC. 

duced without a signature, he rephed by accusing the Secretary and 
other officers of the Interior Department with the foulest crimes. 
Every record which contradicts his calumny is pronounced to be mu- 
tilated, forged, or falsified. I will not go over the evidence on this 
point. The character of the accused, the absence of all motive for 
the offense, the fact that no possible good or injury could be done to 
anybody by its commission, and the unequivocal testimony of the most 
respectable men, that it was not committed : these considerations 
make the charge too preposterous to be answered. The wonder is 
that two persons could be found on the face of the earth who would 
swear to it. But where there is a will there is a way. When Ahab 
and Jezebel wanted a vineyard which did not belong to them, they got 
two men of Belial and set them up before the congregation of the 
people to bear witness against Naboth that he was guilty of blasphemy 
against God and the king ; which was not more false than the accusa- 
tion that Cox committed forgery. The Jezreelite was stoned, and the 
American secretary was driven out of office, but it is now tolerably 
well ascertained that both of them suffered great wrong. 

As early as 1861, when it became manifest to the claimants that 
the fraudulent decree of 1858 could not hold, they worked up another 
plot to get another judicial decision by means equally criminal. It 
was agreed among them that a suit should be instituted in their inter- 
ests, but apparently for the benefit of the United States, and con- 
ducted by a District Attorney whom the claimants would nominate 
and bribe to give the cause away, as Ord gave it away before. This 
base plot could not succeed without the connivance of the Attorney- 
General's office, which they hoped to secure. It fell through, be- 
cause Bates and Coffey could neither be imposed upon nor corrupted. 
All concerned in or assenting to this vile conspiracy were guilty of a 
great criminal offense. McGarrahan's admission, that he himseK 
eagerly adopted it as '' an entire new programme," covers him and his 
claim with infamy. 

He brought several suits in California against the occupants and 
owners of the mine after the whole controversy had been finally and 
irrevocably determined against him by the Supreme Court of the 
United States — one upon his clandestine survey, another upon his pat- 
ent, which was never made — and he prosecuted them with unprinci- 
pled pertinacity through all the courts. 

Defeated, detected, and foiled in the courts, he has vexed every 
Congress with his appeals, and filled all the halls of this Capitol with 
his false clamor. His own admissions, as written out with his own 
hand, show that he has partially succeeded by means unspeakably base 
and grossly criminal. 

Immediately after I expressed the opinion that the claim was un- 
sound, and refused to dismiss the appeal, McGarrahan commenced his 



FORENSIC. 585 

personal abuse of me. He still seems to think that I am the author 
of his troubles, and the architect of all the ruin which has fallen upon 
his schemes. He does me honor overmuch. Any other person in my 
place would have done precisely what I did. No Attorney-General, 
faithful to his duty, would have suffered the Government to be robbed 
by such a bold and bungling fraud. No lawyer, of the least skill or 
ability, could have failed to defeat it. My expression of an opinion 
adverse to the legal validity of the claim, called out as it Avas by the 
claimant himself, and accompanied by unanswerable reasons, was cer- 
tainly as proper as it was unavoidable. All impartial persons have 
approved it. No decent man will ever blame me for it. 

But McGarrahan asserts that it was wrong in me to move the re- 
scission of the order to docket and dismiss. By the use of a false 
transcript he had got the court to dismiss an appeal that never was 
taken, from a decree that was collusive and void. Should I have 
allowed him to keep the advantage which he had won by this foul 
play ? I thought and still think that my intervention to defeat this 
trick was due to Judge Ogier, to the Supreme Court, to the interests 
of the United States, to the rights of their alienees, and to the cause 
of public justice generally. I did defeat it, by simply making the 
facts known to the court. If I had done less, I would have been 
a party to the outrage. 

He says I used false evidence in support of the motion. The evi- 
dence consisted of Judge Ogier's official statement, the full record of 
the case, the letter of McGarrahan himself, suggesting the falsification 
of the transcript, and the sworn statements of the clerk and counsel 
concerned in, or connected with, the case. These proofs were so 
plainly proper and pertinent that the distinguished counsel on the 
other side made no effort whatever to suppress them. They were 
given as much time as they asked for to contradict them if they could. 
The report shows that Ord's own affadavit, which was not offered 
until after the argument, was then put in with my consent. Never 
was a judicial question, great or small, more fairly heard, more fully 
proved, or more justly decided. 

It is said that the whole action of the court was wrong, because ex- 
parte affidavits were read on the motion to dismiss. Such affidavits 
can not be used as evidence on a final hearing against a party who ob- 
jects to them. But there is certainly not a man on this committee 
who does not know that they are perfectly proper, and always admitted 
as the ground for interlocutory orders, which do not affect any ulti- 
mate rights. They were justly and legally heard here, and heard with- 
out objection. 

Another allegation is that the affidavits, or some of them, were 
drawn up by Mr. Gould ; that they were false, and that I knew them 
to be false. An accusation like this, fished up from the oblivion of 



586 FORENSIC. 

twenty years, might be hard to answer as a general rule. But in this 
case there is no difficulty. How could I know that Mr. Gould had 
suborned witnesses to perjure themselves ? What right had I even to 
suspect him of such a crime ? He was known to me as a man of stain- 
less reputation, surrounded by troops of friends. To this day I have 
heard no imputation upon his integrity except what has come from 
McGarrahan or his underground accomplices, and only from the low- 
est, even, of them. I believed the evidence upon which the court 
acted. I not only believed those affidavits to be true on every mate- 
rial point ; they were in fact true. They were uncontradicted at the 
time, and stand now corroborated by the admissions of the parties, by 
the record of the court, by the statement of the judge, and by all the 
known facts of the case. 

You are also told that both Judge Haight and the Supreme Court, 
at my instance, violated the rule which declares that a decision shall 
not be disturbed after a term has gone by. It is true that where a 
case has been heard and determined, and the whole record fully made 
up, it can not at a subsequent term be opened or altered to correct 
mere errors. But everybody knows, or ought to know, that the doc- 
trine does not apply to collusive or fraudulent judgments, which are 
merely void, and may be so declared and treated whenever their true 
character is discovered. 

Again it is charged that the Government, by exposing the miscon- 
duct of McGarrahan and Ord, created a prejudice against them both, 
which has been a great disadvantage to them ever since. There was 
no prejudice against them in any bad sense. It is true, however, that 
the revelation of their false, deceptive, and criminal behavior did raise 
a presumption that they were dishonest and unfit to be trusted in any- 
thing. It was impossible for McGarrahan to regain the status of a 
true man in a court which he had once grossly cheated. Qui semel 
est malus semper presumitur esse malus in eodem genere. Courts 
must not put honest men and detected knaves on a level — the logic of 
the law requires a difference to be made. It is right ; it is just ; it is 
always so ; and God forbid that it ever should be otherwise. 

The soul of this claimant is still further vexed by the fact that I 
have been, and am now, the counsel of private persons interested with 
the United States in defeating his fraud. He professes to believe that 
after I went out of office I should have dropped the case. So I did, 
but I took it up again on the retainer of the New Idria Company. I 
believe I have been employed three or four different times. What my 
fees were is a question between me and my clients, but McGarrahan 
is welcome to the admission that thev were much larger than he knows 
of. 

Is it pretended that because I had been Attorney-General, I could 
not afterward become a counselor in such a case ? If that be true, I 



FORENSIC. 587 

have sinned much and often, and every other Attorney-General has 
habitually done likewise. Nearly all of them who practiced here have 
been concerned in this very same case on one side or the other — Mr. 
Reverdy Johnson, Mr. Gushing, Mr. Stanton, Mr. Evarts, and two As- 
sistant Attorneys-General (Mr. Gillett and Mr. Coffey). Have all these 
gentlemen forfeited their honor ? Wliat they have done, not only in 
this but in many other cases, proves that the foremost men in the pro- 
fession have regarded a practice in this line as perfectly legitimate. 

But it is asserted that no attorney or counselor whatever had a 
right to appear and act with the Attorney-General, or aid him in the 
defeat of the Gomez claim, at the instance of the New Idria Company, 
and for a compensation paid by it. In other words, the alienees of 
the United States can not legally have their interests represented or 
their rights protected by counsel of their own employment, though 
they, as well as the Attorney-General, may desire it ever so much. 
With all possible patience I will give you the reasons on which the 
contrary view is grounded. 

Here was a case in which Vicente Gomez and the United States 
were the nominal parties. But, in fact and in truth, they were not 
either of them the sole parties in interest, or even the principal par- 
ties. Gomez had sold his claim out and out to Ord and McGarrahan, 
and the United States had parted with a portion of their interest in 
the subject-matter of the controversy to persons who had increased its 
value by large expenditures of money, time, and labor. The real par- 
ties were Gomez and his alienees on the one side, and the United 
States and their alienees on the other. The vendees of Gomez em- 
ployed their own counsel. At the final hearing, Mr. Gushing and Mr. 
Stone declared themselves in the service of McGarrahan alone. Doubt- 
less McGarrahan, as the interested party on one side, could properly 
employ them, and pay them. But, if he could, what decent pretext 
can be set up for saying that parties on the other side had not a right 
to defend themselves ? 

I hope no argument is needed before you to establish the principle 
that in every judicial proceeding all persons are entitled to be heard 
whose rights of property are, or may be, affected by the result ; that 
is to say, all persons by, or against whom, the record may be pleaded 
as an estoppel ; and this includes not merely the nominal parties, but 
all others who are in privity of estate with them. Here, a final de- 
cree against the United States would have been fatal to the rights of 
the New Idria Company, just as certainly as the decree against Gomez 
was destructive to the pretensions which McGarrahan set up under 
him. No court ever ruined any citizen by a conclusive judgment 
against him, without giving him an opportunity to be heard. 

All the most important of these California claims were argued by 
counsel who bore exactly the same relation to their clients that I did 

38 



588 FORENSIC. 

to mine in this case. While in office I was associated in that way 
with the most illustrious men in the profession, and after I went out 
I became concerned in numerous cases for settlers, owners, occupants, 
and vendees of the United States against illegal, void, and fabricated 
claims. My successors, as well as my predecessors, believed the prac- 
tice perfectly honorable, and encouraged it for reasons of policy as 
well as from a sense of justice. It was universally known, and as uni- 
versally approved by bench and bar and country. No human being, so 
far as I know, ever made a suggestion that there was anything wrong 
about it, except McGarrahan or somebody in his interest. 

The gentlemen who support the McGarrahan side of this case know 
very well that if they had been in my situation they would have acted 
as I did. If Mr. Carpenter, Mr. Wilson, Mr. Ingersoll, Mr. Shella- 
barger, or General Logan had been at the head of the Law Department 
when this claim made its appearance there, they would have shown it 
no favor at all. Either one of them would have exposed the falsified 
transcript and got the mandate revoked ; either would have given in- 
structions to strike out the collusive decree of confirmation and get 
an honest hearing in the District Court, and, failing in that, he would 
have demanded an appeal to the Supreme Court, and there he would 
have spoken up for a decision according to the very right of the cause. 
This either of these gentlemen would have done as public duty while 
in office, and if honorably retained afterward by a party claiming 
under the United States he would have continued his labors until his 
clients got justice. 

But McGarrahan makes all official or professional opposition to 
his claim, however just and proper, a ground of personal quarrel. 
The fairest and most legitimate resistance to his fraud fills him with 
rancorous malice. Because I did not pronounce his fabricated title a 
good one he declared that he would suffer any annoyance, or encoun- 
ter any personal risk, to get his revenge out of me. I do not doubt 
that he would poison me if he could. It would be mere suicide in me 
to drink from a cup in which he had an opportunity to drop strych- 
nine, or to sleep in a room where he could stab me without being dis- 
covered. 

Not less diabolical is the spirit he displayed to Mr. Stanton, whose 
life would not have been worth a pin's fee if he had held it at the 
mercy of McGarrahan. Yet the only offense which even his malig- 
nity ever charged against Stanton is that, being Attorney- General, he 
would not betray his trust — would not be corrupted by the present of 
a cadetship, worth in the market from three to five thousand dollars — 
would not accept a '* slice " of the fraud, and go into the boat with 
him and Ord. Simply and solely because Mr. Stanton was honest and 
faithful, and for no other reason assigned or assignable, McGarrahan 
finds no name to call him by but tliief and scoundrel. 



FORENSIC. 589 

You need not be told that Mr. Bates was a most learned lawyer, 
and a gentleman of unsullied character ; nor is it worth while to re- 
mind you of the unflinching fidelity and vigorous talents with which 
his assistant, Mr. Coffey, performed his duties. But both of them 
adhered conscientiously to the opinion placed on record by their prede- 
cessor, that the fraud was a fraud and ought to be opposed ; therefore, 
and therefore only, Mr. Bates is denounced as an imbecile, and Mr. 
Coffey as something worse. 

Mr. Evarts made an argument in which the case was discussed 
with uncommon ability, and at the same time with the utmost candor 
and fairness, but it proved beyond a question that the claim was un- 
sound, and that it had been prosecuted corruptly. The incontrovert- 
ible truth of the speech transported McGarrahan with rage, and he 
declared that the only way to deal with the author of it was to use 
the bullet and the bowie-knife upon him, and added, " It will come to 
that yet." He ought to be beheaded or disemboweled, and he (Mc- 
Garrahan) would do it himself, if he could get nobody else to under- 
take it. 

I am well aware that talk like this is generally thought to mean 
very little, and that is true if it be uttered by a ruffian at the moment 
when his coarse passions are suddenly roused. But when a swindler 
deliberately sits down and writes out to a confidential correspondent 
his intention to take the life of a man who has balked his fraudulent 
purpose, he shows his real nature. It means thirst for blood as plainly 
as the howl of the wolf. 

Mr. Hoar argued in the Supreme Court the case of McGarrahan 
vs. The Secretary. He demonstrated the law of the case, and ex- 
posed the naked falsehood of the grounds upon which the plaintiff in 
error had got the judgment. Perhaps that natural law of right and 
scorn of wrong, for which he is so well known, was somewhat impress- 
ively manifested. This was the unpardonable sin, for which McGar- 
rahan classes him with Evarts and others as a vagabond and a rascal. 

The brutal language he uses about General Butler — too indecent 
to be repeated — might pass for a fool-born jest, if spoken in conversa- 
tion, or it might be taken for the ribaldry of a braggart, if uttered in 
heat ; but written and sent to an accomplice, it brings him squarely 
within Sir Michael Foster's definition of malice, inasmuch as it shows 
"a heart regardless of social duty and fatally bent on mischief." 
General Butler had supported him against the mining company until 
investigation made him doubt whether either party had a good right, 
and he expressed the opinion that the title was still in the United 
States. For this offense only he wants him disemboweled and muti- 
lated. 

It is curious how steadily he adheres to his one standard of right 
and wrong. All who refuse their aid to his fraud are rascals, black- 



590 FORENSIC. 

hearted, and base. He found the officials of the Government here 
unanimous in their opposition to his bogus claim. He applies his 
measure, and announces as the result that the higher the position 
the greater the scoundrel. He finds this to be especially true of the 
Lincoln Administration and its adherents, after trying it only ten 
days. 

All judges who decide against him, or hold that his impostures 
shall not avail him in law, are abused with equal violence. Judge 
Ogier is bitterly maligned, and the judges of the Supreme Court are 
declared to be corrupt, partial, and dishonest. 

The members of Congress who investigated the case and concluded 
that he had no right to property which was vested in others by the 
terms of a judicial decree, are spoken of in the same way. The 
House Committee of 1871 are reported upon in his letters. It looks 
to him, he says, as if Mercur was bought by Peters. Those who voted 
against the fraud are enumerated by name, and pronounced ''all 
thieves without influence." 

But the most inexcusable of all his slanders is that upon Mr. Cox, 
the Secretary of the Interior. I would not make individious compari- 
sons between the several distinguished gentlemen who have graced 
that high office by holding it ; but if there be one among them all 
whose unimpeachable purity, united with great talents, entitles him 
to stand 'primus inter pares, this special victim of McGarrahan's vitu- 
peration may safely claim to be the man. Of course he frowned upon 
the false pretense that McGarrahan was entitled to a patent on his re- 
jected claim. He put his foot upon the lie that there was one in the 
office already signed by the previous President ; he produced the un- 
executed paper and showed that no signature was there ; and across 
an unauthorized copy in the register he caused the truth to be written 
— that it was not a record, but the blunder of a clerk. McGarrahan 
went to General Grant with the charge that the Secretary had dishon- 
estly altered and mutilated the records, to the prejudice of his rights. 
General Grant opened his ears to the slanderous story. Mr. Cox ex- 
plained fully, and closed by saying that he had fought fraud with 
what vigor he could, and if he was not to be sustained, he wished to 
be relieved from the duty. But the mind of the President had be- 
come so biased by McGarrahan that he would not sustain his Secre- 
tary. Thereupon Mr. Cox was obliged to retire, with the blistering 
charge of forgery fastened upon him by an impudent impostor. Mc- 
Garrahan gloated over his work ; he thought the Secretary was ruined 
— his life's life lied away forever ; and he raised the shout that " Cox 
was dead and damned." The sun in heaven never looked down on 
anything more basely unjust. 

It is easy to repel the direct attacks of his malice upon the men 
whose fidelity to duty has made him their avowed enemy, but hard to 



FORENSIC. 591 

defend those whom he treacherously stabs while professing his grati- 
tude and admiration. His hate is harmless, but his love blights like 
a pestilence. It is not the bite but the slaver that poisons. He is 
the hardest of all fraudulent claimants to deal with. If you oppose 
him, he pours out his malignity in torrents of vulgar abuse ; if you 
support and defend him, he chuckles over your infamy, brags that 
he has bought you, and tells what price he is to pay for your con- 
science. 

The distinguished and honorable gentlemen who support the claim- 
ants before you must be shocked beyond measure to find that others 
who have served the same cause as honestly as they serve it now are 
rewarded by imputations of the foulest corruption. Their natural 
impulse is to deny indignantly McGarrahan's accusations, that the 
advocates of the claim in Congress and in the executive oflSces were 
bought with a price. But, unfortunately, they can not make the 
proper defense without acknowledging that their client is utterly un- 
worthy of belief in everything he says or swears about friend or foe. 
TJieir hands being tied up, the duty devolves upon us. 

McGarrahan's general statements about his underground move- 
ments, and the evil influences he brought to bear, when considered in 
connection with the palpable dishonesty of the claim itself, are calcu- 
lated to bring a certain amount of discredit upon all who have shown 
it the least countenance. But I am as certain as I am of my own life 
that many of these gentlemen, if not all of them, were sincere believ- 
ers in the rectitude of the measures they voted for. They were not 
corrupted, but deluded by the artful though false accounts which Mc- 
Garrahan and his accomplices laid before them. Against many of 
them he himself says nothing which, directly or indirectly, affects 
their reputation. It would be most injuriously wrong to infer from 
his mention of certain Senators and Representatives as great friends 
of his claim, that they were induced to take that side by any improper 
considerations. 

Others, however, are brought within the range of his slanderous 
missiles by the lists which are found in the archives of the Panoche 
Grande Company. That corporation was entirely his own ; he held 
all the stock ; not a share of it could go into any other hand without 
his consent ; every officer and manager was his agent and trustee. 
The lists, therefore, of the stockholders found on its books, and certi- 
fied by its secretary, under the corporate seal, must have been made 
by his authority and under his direction, given in some form or other. 
If those lists were true, certain highly respectable gentlemen, and 
faithful servants of the public, would be rendered utterly infamous ; 
for it would show that their enthusiastic support of a false claim was 
bought and paid for. But the lists are not true. They are clearly 
proved to be false, as regards several of the gentlemen implicated, 



592 FORENSIC. 

and, therefore, they are unreliable all through. Falsus in uno, falsus 
in omtiibus. 

Why did McGarrahan make these lists, or cause them to be made, 
certified, sealed, and put upon the records of his corporation for a per- 
petual memory ? This is hard to answer. A man like him is always 
acting upon reasons which are incomprehensible to others. lie may 
have intended to put this weapon away to be used in terrorem, or to 
punish recalcitration, if either of the men named should recover from 
their delusion, and incline to go back upon him. If this be not an 
explanation, I must leave the mystery unsolved. 

But whatever may have been his motive or that of his coadjutors, 
these papers have no probative force against anybody but the authors 
of them. They can not affect others. They are but the written dec- 
larations of McGarrahan, and upon that testimony you would not 
whip your enemy's dog though he had bitten you. 

Other members of Congress, with names known and honored 
throughout the country, are more directly aimed at and hit much 
worse. They threw the whole weight of their powerful influence in 
favor of the claim. McGarrahan makes charges against them which, 
if true, should have sent them to the penitentiary. If by his letters 
or his oath he succeeds in fastening these accusations upon his devoted 
friends, he has done them an injury compared to which his bullet and 
bowie-knife would have been visitations of mercy. 

I meet all this with a sweeping denial. It is a rule of law clearly 
defined, well understood, and in modern times universally acknowl- 
edged, that where a party, admitting his own guilt, charges others 
with being his accomplices, the confession, though good against him- 
self, does not furnish a spark of proof against the person he tries to 
implicate. This is not merely the legal rule, but in a case like the 
present it is the natural presumption which every just man will make. 
McGarrahan's statements, under all the circumstances, should be taken 
as strong prima facie evidence that the fact is the other way. 

General Sickles always told me that he had no interest of his own 
in this claim. No doubt he would so swear if called upon now. He 
would deny positively that he ever carried to Stanton McGarrahan's 
proposition to go into the same boat with him ; and he would vindi- 
cate himself sternly and strongly against the charge that he stole a 
letter out of the Attorney-General's office. But he was not brought 
here by either party, and he did not come of his own accord, because 
he did not think McGarrahan's slanders worth a contradiction. 

Senator McDougall was a warm supporter of the claim, both in 
Congress and before the departments, and it may be true that he re- 
ceived considerable amounts of the stock, because there is some evi- 
dence which corroborates McGarrahan's assertion. But the fact is 
capable of being explained, and Mr. Carpenter's suggestion, that it 



FORENSIC. 593 

was given as the fee of his law firm in California, is probably correct. 
Any reasonable theory, consistent with innocence, ought to be adopted 
in the case of a man whom death has disarmed of the power of self- 
defense. 

The same may be said of Mr. Hickman. That he advocated Mc- 
Garrahan and his fraud through thick and thin can not be denied. 
But that he was the corrupt wretch McGarrahan makes him out to be 
is wildly improbable. It is incredible that he held a convocation at 
his own house to concoct that infamous scheme for getting a false 
judgment by bribing the District Attorney. That there was such a 
scheme, and that McGarrahan was intensely delighted with it and 
tried to carry it out, is no doubt true ; but it will take better evidence 
than McGarrahan's to prove that Hickman was a party to it. McGar- 
rahan runs his slander into the ground when he swears that he not 
only paid Hickman in stock, but bribed him with money, which Hick- 
man accepted reluctantly. It is much more likely that he furnished 
money to McGarrahan ; and his reluctance was expressed to find him- 
self fleeced. 

The two Blairs — one of them Postmaster-General and the other a 
leading member of Congress, expecting to be Speaker — are repre- 
sented as being in such relations with McGarrahan that he fears he 
can not hold them without a cash retainer, which he expects them to 
demand. But, according to his own account, he held them somehow, 
and held them very tight. When the country was agonizing in the 
first throes of a great convulsion he astonished the public by absorb- 
ing the Blairs as well as other great statesmen. The cabinet officer 
came and went at his bidding, to fetch and carry and do his dirty 
work as he commanded. The member of Congress became the bond- 
slave of the fraud, and arranged the corruptest plans of promoting it 
against all justice and all truth ; for which services he was paid by 
large slices of stock. The survivor of these two brothers has publicly 
declared that he never had a dollar of the stock, and does not believe 
that the deceased one ever had. We accept this denial. I go further, 
and I assert that Montgomery Blair never, at any time, did anything 
in this business but what he might honorably do for a client by whom 
he was legally retained after he went out of office. As to Frank Blair, 
neither McGarrahan's letters, nor the records of his swindling corpora- 
tion, nor his oath, can justify the belief that he would so prostitute 
himself. No son of his great father would "sell the mighty space of 
his large honors for so much trash as could be grasped thus." 

He does not stop with maligning his executive and legislative 
friends. The surveyors who served him by surreptitiously laying his 
claim where he wanted it, and the District Attorneys that he relied on 
to favor him, were acting, if he tells the truth, for bribes, which he 
paid, or promised to pay them. He takes care that even the judges 



594: FORENSIC, 

who decided in his favor on any branch of the case, shall not have 
credit for impartiality or fairness. Judge Haight was pledged before 
his appointment to resist all the influences of justice ; and while his 
application for a mandamus was pending against the Secretary of the 
Interior, he represents the judges of this district as listening privately 
to the most indecent solicitations, and making secret arrangements 
about their decisions. He describes them as loafing in his room, 
drinking his whisky, and discussing his case with him over their cups. 
His picture makes them a disgrace to the administration of justice. 
He permits nobody to escape his filth. Like a foul bird of prey, his 
obscene droppings are everywhere, and always most offensive in the 
most sacred places. 

It will be said that— it has already been said — that this is irrele- 
vant matter. I maintain that it is eminently proper and just to put 
the absent and the undefended in their proper places. Do you think 
we should allow such calumnious accusations to pass unrebuked and 
uncontradicted merely because they concern men who have been our 
opponents ? Shall we, if we can help it, permit these aspersions to 
rest like a dark cloud forever on the memory of innocent people ? 
No, by the honor of the living, and by the green graves of the dead, 
we will not. 

To let them stand wholly without denial would be extremely dan- 
gerous. The world will ask why, if they are false, did McGarrahan 
make them against his friends ? His slanders upon us can be under- 
stood ; his malignity accounts for them. But these are men for whom 
he professes admiration, respect, and gratitude. That he should delib- 
erately impute crime and corruption to them is amazing, unless it was 
true. I repeat that I am not bound to account for McGarrahan's 
conduct. He is not like other men. The whole make-up of his mind 
is abnormal. He manifestly believes that a public officer who per- 
forms his duty, unawed by influence, and unbribed by gain, is un- 
worthy of the slightest respect. Such a man he uniformly calls tliief 
or scoundrel ; thinks he ought to be impeached, and wants to kill him 
or take his bowels out. In his estimation, therefore, a member of 
Congress, or an executive officer, honors himself by being unfaithful to 
his trust ; he considers him meritorious in proportion as he is corrupt ; 
and this exiDlains the strange fact that he mingles his charges of dis- 
honesty with terms of endearment and eulogy. It is his way of prais- 
ing his friends. 

That is one explanation ; there is another : Franck, to whom most 
of these letters were addressed, had a little money. McGarrahan took 
him into the fraud, and dazzled him with the prospect of becoming 
a millionaire. To inspire him with confidence, and make him bleed 
freely, it was necessary to tell him that these powerful gentlemen were 
enlisted heart and soul in the same enterprise, and he would not credit 



FORENSIC. 595 

that unless he was convinced that they had a pecuniary interest in it. 
McGarrahan did not scruple to practice the proper amount of decep- 
tion. 

But somebody may ask why we did not suppress these scandalous 
papers. We introduced them here for a purpose eminently proper — 
to show that the claimants had been prosecuting their case in the 
courts, in the Land-Office, and in Congress by appliances that were 
grossly immoral and deceptive. The letters do make that perfectly 
clear. They are the claimant's confession that he has acted through- 
out, from the beginning to the present time, as nobody would act who 
was not a most redemptionless rogue. As against him they prove with 
irresistible force that the case is saturated with corruption. It was 
unlucky, to be sure, that he did not put the admissions of his own 
guilt and his charges against other persons in separate papers. He 
Joined them together so that we could not exhibit one without the 
other. That was no fault of ours. We have done our best to prevent 
them from injuring the innocent, and we produced as few of them 
as possible. We have hundreds more behind these. If our learned 
friends on the other side knew how much of this scandal we did not 
show, they would not complain of what we did show. 

I might extend these remarks, but, cui bono f You know the his- 
tory of the fraud. You will decide according to your duty. Our ex- 
posure of it may be a warning to prevent others from engaging in such 
affairs. At all events, we expect that no prudent man will ever again 
go into this leaky boat of McGarrahan's ; for all who do are sure to be 
wrecked sooner or later. It is a fatal, a most perfidious bark, *' built 
in the eclipse, and rigged with curses dark." 



FEDERAL JURISDICTION IN THE TERRITORIES.— RIGHT 
OF LOCAL SELF-GOVERNMENT. 

BEFORE THE JtrOICIABT COMMITTEE OF THE HOUSE OF EEPEESENTAT1VE8. 

Mr. Chairman and Gentlemen of the Comynittee : 

I AM here with your permission, and at the request of the people of 
Utah, to discuss their rights and the powers of the Federal Govern- 
ment to control them. 

If you think for a moment how much they may suffer by your 
legislation, and remember that they have no vote in either House of 
Congress, I trust you will hear without objection the defense of their 
counsel, and permit him to show, if he is able, that the hostile meas- 
ures passed and proposed against them are unjust and unconstitutional. 

Though I claim nothing for those people on the score of their 



596 FORENSIC. 

merits, yet their behavior and character ought not to be misunder- 
stood. It is said (with how much truth you know as well as I) that 
they are sober, honest, i3eaceable, upright, and charitable, not only to 
one another, but to the stranger within their gates. The records show 
them to be singularly free from the crimes forbidden in the Decalogue,* 
and not at all addicted to the vulgar vices which often deform the 
character of frontier communities. Their territorial government has 
been conducted with surprising purity, wisdom, and justice. Simple 
in its machinery, and impartial in its laws, its burdens are light and 
its protection universal ; no cheating at elections, no oflBcial defalca- 
tions, no special taxes, and not a dollar of public debt. 

They profess almost universally a religion of their own, for which 
they are daily reviled and insulted ; but they make no legal discrimi- 
nation against the faith of those who dissent from them ; there is no 
trace of intolerance in their enactments, and the constitution framed 
by themselves, and under which they ask for admission as a State, 
guarantees to every human being the most perfect freedom in matters 
of worship and conscience. Nowhere on earth has the value of local 
self-government been so strikingly attested by the success of the peo- 
ple who enjoyed it. Thirty-six years ago the valley of Salt Lake was 
the most forlorn and dreary region on the surface of the globe — a 
mere waste, which produced literally nothing. But under the stimu- 
lus of civil and religious liberty these Mormons struggled against all 
the obstacles of nature. By a system of irrigation, amazing for its 
extent, ingenuity, and cost, they brought ample supplies of water 
from the distant mountains down upon the plains, and by their perse- 
vering industry they converted that rainless desert into a land of 
plenty, covered with fruitful farms and thriving towns. 

I think that, under these circumstances, it would be an infinite 
pity to strike the Territory of Utah with the curse of political slavery, 
to deprive the people of their local government, and deliver them up, 
naked and defenseless, to be sacked and pillaged by their enemies. 
But let it be understood that I am not asking for mercy. If you have 
the constitutional power you must exercise it as you please. 

There are many reasons which naturally incline an American 
statesman to do all the harm he possibly can to the peojile of Utah. 
They are powerless to resist it. They have not a single vote in the 
National Legislature, and can not exercise the slightest influence on a 
presidential election. They are excluded from all political rings ; 
they can not be anybody's competitor for the spoils of office ; they can 
make or mar no scheme to save or squander the public money. On 
the other hand, the whole country outside of their own Territory is 
populous with their enemies, whom you must conciliate and gratify if 
you can do so with a safe conscience, for they have votes, and power 
and influence which will not be opposed without danger. 



FORENSIC. 697 

The religion which the people of Utah adhere to with so much 
tenacity is regarded in other parts of the country with extreme dis- 
like, as the mere superstition of an upstart sect. No man, however, 
who has the faintest perception of Christian principles, thinks it right 
to kill or plunder or outlaw them for holding an erroneous faith. 
From real Christianity there comes no howl for the blood and proj?- 
erty of the Mormons. But in other quarters the most rancorous 
hatred breaks out. By some famous preachers the policy of killing 
the Mormons by wholesale, unless they leave their property, abandon 
their homes, and jBee beyond the Union, is openly advocated, and ap- 
parently concurred in with great warmth by congregations supposed 
to be respectable ; and this is accompanied with curses loud and deep 
upon all who would interpose a constitutional objection to that method 
of dealing with them. When we read of such things in history we 
are apt to think them diabolical. But approved as they are now and 
here by popular judgment, and unrebuked even by senatorial wisdom, 
we must concede, I suppose, that it is very good taste and refined 
humanity disguised in a new dress. As a general rule, political piety, 
wherever it has turned up the whites of its eyes in this country or in 
Europe, is a sham and a false pretense ; but in this exceptional case 
it would be speaking evil of dignities to call it hypocrisy. The sound- 
ness of the religion which slanders a Mormon is not to be questioned. 
Equally pure is the act of a returning-officer who fraudulently certifies 
the election of an anti-Mormon candidate, known to be defeated, by a 
majority of more than fifteen to one, nor will we attribute any sordid 
motive to those residents of Utah, official and private, who busy them- 
selves here and at home to break down the territorial government, 
seize its offices, and grab its money. Their righteous souls are vexed 
from day to day by the mere fact that sinful men are allowed to live 
peaceful and prosperous lives. They are animated solely by disinter- 
ested zeal for the advancement of the Lord's kingdom, which in their 
judgment would be much obstructed by the further continuance of 
free government in Utah. 

But the case does not depend on the merits or demerits of the par- 
ties. It is not a question what measure of punishment the people of 
Utah deserve for their wickedness, but what Congress has a right to 
inflict. Whatever may be the superior sanctity of the holy men who 
promote this legislation, they can not be gratified at the expense of a 
breach in the Constitution. If you shall be satisfied that you have no 
power in the premises, you will not usurp it ; for that would be a 
hideous crime, of which you are wholly incapable. Before I go fur- 
ther let me vindicate the justice of this censure, not because you doubt 
it (for that is impossible), but merely to stir up your pure minds by 
way of remembrance. 

Mr. Grote, the most learned and thoughtful of modern historians. 



598 FORENSIC, 

has shown by divers examples that fidelity to the fundamental law — 
which he terms constitutional morality — is the one indispensable con- 
dition upon which the safety and success of every free government 
must depend. The high career of Athens, from the expulsion of the 
Peisistratids to a period after the death of Pericles — the marvel and 
the admiration of all time — was plainly due to the faithful practice of 
this supreme virtue. It was this that made the steady Eoman strong 
enough to shake the world. England observes not only the theories 
but the minutest forms of her constitution, when legislating for her 
own people, and that has given her domestic tranquillity and solid 
power at home ; her shame and her misfortunes are all traceable to 
the disregard of it in dealing with colonies and outside dependencies. 
Constitutional morality was cherished and inculcated by our fathers, 
in the early ages of the Eepublic, as the great principle which should 
be the sheet-anchor of our peace at home and our safety abroad, and, 
to the end that it might never be forgotten, they imposed a solemn 
oath upon every legislator and every officer to keep it and observe it 
with religious care at all times and under all circumstances. In con- 
trast with the self-imposed restraints of the American democracy, 
Grote mentions the French, a nation high in the scale of intelligence, 
but utterly destitute of attachment to any constitution or any form of 
government, except as a matter of present convenience. You know 
what came of it — eleven revolutions in less than eighty years — a his- 
tory filled with wrong and outrage — a peojDle forever alternating be- 
tween abject slavery and the license of ferocious crime. 

It is as plain as the noonday sun that without constitutional mo- 
rality every pretense of patriotism must be false and counterfeit. The 
man who says he loves his country, and yet strikes a fatal blow at the 
organic law upon which her life depends, shows his sincerity as Nero 
proved his filial affection when he killed his mother and mutilated her 
body. 

A violation of constitutional law is not an offense which is ever 
made venial by the occasion. You can not do evil that good may 
come. The evil is there, and the good never comes. 

No matter how unimportant the breach may seem ; though small 
at first, it will widen like a crevasse in the Mississippi, until the whole 
stream of arbitrary power goes rushing through it. Besides, the grade 
of a crime is not measured by the extent of the particular mischief. 
Forgery is forgery, whether the sum obtained by it be great or small, 
and murder is not mitigated by showing that the victim was short of 
stature. 

It often happens that legislators, as well as other men, feel them- 
selves hampered by such restrictions ; but that does not authorize dis- 
regard of them. You can not break lawlessly over the Constitution 
because it confines you to limits inconveniently narrow. 



FORENSIC. 599 

In this country all men and all classes are equal. No one can law- 
fully say to another, " Stand aside, I am holier than thou," and push 
him from his place on the platform of the Constitution. Superior 
sanctity is not a thing to be safely believed ; it is easily simulated ; it 
is often false ; and, when it comes into politics, it is almost universally 
put on to cover some base and malicious design. The Scribes and the 
Pharisees were hypocrites. 

The party whose rights are injuriously affected by vicious acts of 
Congress outside of the Constitution may be weak and defenseless, the 
inhabitants of a distant Territory, and the members of an unpopular 
sect whose complaint can not reach the general ear, and would excite 
no sympathy if it did. But these are the very considerations which 
plead most strongly against the usurpation of ungranted power to 
destroy them. This is no appeal to your magnanimity, but a mere 
suggestion that the Constitution was made most especially for the 
weak. 

We are not all agreed about the wisdom of the Constitution, or the 
virtue of the men who made it ; but whether you like or loath it, you 
are equally bound to obey it. You do not lessen this obligation one 
whit by railing at it. When you break it you do not diminish your 
guilt in the least by calling it an agreement with death, and a cove- 
nant with hell. 

Nor can you change the nature or lessen the degree of the wrong 
by your own contemptuous feeling for the object. He may be alto- 
gether unworthy of your favor, but you owe him justice, and you 
must pay the debt to the uttermost. A legal right is, in and of itself, 
a very respectable thing, however much you may hate and despise the 
man, or body of men, that sets it up. 

Moreover, constitutional morality means general morality in all 
things public and private, and the converse of the proposition is also 
true. Political power, under our system, is a trust given and ac- 
cepted upon certain covenanted terms, and to be executed within cer- 
tain limitations. A willful breach of this trust,, by transgressing its 
limitations, perverting its purposes, or violating its conditions, is an 
act of personal dishonesty which not only comipts the officer who 
commits it, but demoralizes all other citizens who are temj)ted by 
their personal or party attachments to defend or apologize for the 
wrong. Thus the floodgates of iniquity are set wide open — all that is 
pure in morals, all that is perfect in politics, all that is holy in relig- 
ion, are swept away ; the public conscience swings from its moorings, 
the baser passions become masterless, and rapacity riots in the spoils 
of its lawless victories. If you are not satisfied with a free Constitu- 
tion, honestly obeyed, give us a despotism, but save us from a rotten 
republic if you can. 

I have not offered this feeble and faint support to the doctrine of 



coo FORENSIC. 

constitutional morality because I suppose you to be against it, but for 
quite a different reason. I know very well that I am not addressing 
men who claim that their own resentments or their own interests are 
a higher law than the Constitution they have sworn to support, or a 
better rule of action than the law of God, which commands them to 
keep their oaths. 

Let us see whether the measures passed and proposed against the 
Territory of Utah and its people are or are not open to objection on 
the score of immorality. 

The constitutionality of the act of March 22, 1882, has been much 
and seriously questioned as an invasion of religious freedom. That is 
not my point. A mere sin against God, not affecting the relations of 
man to his fellow-man, false worship, heterodox belief, erroneous 
teaching, bad systems of ecclesiastical discipline : these are placed by 
our Constitution beyond the reach of human legislation. But any 
overt act, detrimental to society in general, or injurious to the public, 
may be forbidden by the State, and the offender can not justify him- 
self by showing that it is right according to his interpretation of the 
divine will. A Jew believes it his religious duty to take the widow 
of his deceased brother and raise up children by her, though he has 
a wife and family of his own ; but that is adultery by the law of the 
land, and he can not nullify the law by pleading the revelation to 
Moses. A Seventh-day Baptist may be compelled for the temporal 
convenience of others to keep Sunday as a day of rest, though his con- 
science assures him that Saturday is the Sabbath of his God. One 
who has no faith at all is protected as well as one whose faith is wrong, 
but if the infidel insults or annoys his fellow-citizens, by uttering his 
loose blasphemies at improper times and places, the law may check 
him with a penalty. It is sometimes difficult to see with certainty 
whether a particular act falls on one side or another of the line which 
divides the domain of conscience from that of the secular ruler. In 
doubtful cases, the civil authorities have the right of decision, or, as 
Judge Gibson expressed it, the courts have the last guess. 

My clients, or at least the leading teachers and jurists among them, 
are unshaken in the belief that marriage, being ordained of God and 
a sacrament of the Church, can not be rightfully interfered with by 
the State. For the practical purposes of the present case it does not 
matter whether they are right or wrong about that. 

Conceding the authority of the State, the question arises, who is 
the State ? Where is the civil power to control them vested ? 

They assert that this power resides in their own government, and 
can be exercised only by their own legislature ; that in this, as in all 
things of purely local concern, they are their own masters, with a per- 
fect right to govern themselves. Therefore they hold that the forcible 
interference of Congress in such affairs, whether it be or be not an in- 



FORENSIC. 601 

vasion of their religious freedom, is beyond all doubt a plain and pal- 
pable infraction of their civil liberties. 

The opposing theory, carried out to its logical consequences, is that 
they are not a free community, but a body of mere slaves, subject in 
all matters of every kind to the will of Congress — a body in which 
they have no representation, and composed of strangers, perhaps of 
enemies, who will take pleasure and give pleasure to their constitu- 
ents by the most injurious legislation they can invent against the 
people who are subject to it. The underlying question is, therefore, 
that of jurisdiction, which you are obliged to determine before you 
can know whether you are passing a law, or merely disgracing the stat- 
ute-book by an act of gross usurpation. If it be ultra vires, it is not 
only a violation of constitutional morality, but as void as an ordinance 
on the same subject passed by the directors of a private corporation. 

Perhaps it may be worth while to inquire for a moment how this 
conflict of jurisdiction came about. It started thus : The Mormons, 
being successively driven out of Ohio, Missouri, and Illinois, took 
their religion with them to the wilderness of Utah. To us it is false. 
But that is truth to them which they believe to be true. Their faith 
in their own creed is proved by their works, and sealed with more suf- 
fering than any other sect in modern times has ever endured. It is 
all nonsense to doubt their sincerity. Nobody does doubt it. 

It is a part of this religion that plural marriages are in some cases 
righteous and proper. Their Church teaches that, and they made no 
laws to punish its members for acting according to their belief. This 
simple forbearance of their government to fine and imprison people 
for doing what they all believed to be right is the head and front of 
their offending. How could any sane person expect them to do any- 
thing else ? They had the misfortune to believe, implicitly and almost 
unanimously, as an article of religious faith, that polygamy was not 
wrong. How could they make it a penal offense withovit subverting 
their civil institutions ? You might as well ask a people to punish 
one another for their complexion, the color of their hair, or the shape 
of their bodies, common to and admired by all. They simply could 
not either make or execute such a law. As an organized community 
they must have perished if they had undertaken it. 

Because they would not and could not take this destructive course, 
they are supposed to be guilty of such heinous wickedness that they 
are hardly fit to live on the same planet with us. 

The law which they could not make for themselves, because their 
judgment condemned it as unjust and impolitic, is now to be made 
for them and thrust down their throats ''against the stomach of their 
sense." Their government refused to commit suicide ; therefore it 
ought to be murdered. 

The question whether you can constitutionally legislate on this 



602 FORENSIC. 

subject involves the entire right of self-government. It covers the 
whole ground between freedom and slavery. The formation of the 
family, marriage and divorce, the legitimacy of children, the succes- 
sion to property, these are the most purely private, domestic, and 
local of all subjects to which human legislation can apply ; and if 
your right to control a people in these respects be conceded, there is 
nothing else on which your jurisdiction can be denied. You can 
make your laws good or bad, as you please, and they are as binding 
one way as the other. That they will be very bad is not an idle ap- 
prehension ; for you will be impelled by strong motives to legislate 
without the smallest regard for the rights, interests, wishes, or feel- 
ings of the people concerned. 

If you can forbid polygamy where it is believed to be right, you 
can force it on a community that holds it in detestation. You can 
divorce every man from his wife or wives, whether he has one or 
many. You can abolish the institution of marriage entirely, strip all 
men and all women of their conjugal rights, bastardize all their children, 
and bring on the reign of universal free love. If you can imprison, 
disfranchise, and disgrace a man for marrying the woman he lives 
with, there is no reason (I mean no legal reason) why you should not 
]3atronize adultery and honor the brothel. 

This omnipotent power of Congress, which makes and breaks the 
matrimonial contract, extends to all the relations of private life. 
That of parent and child necessarily goes with it ; ancestor and heir 
follows, of course, and, by parity of reasoning, master and servant 
are included. Then why not debtor and creditor, landlord and ten- 
ant, vendor and vendee ? What shall hinder you to take away the 
testamentary power, forbid administration of a decedent's estate, regu- 
late all business, and stop all work except what you and your con- 
stituents approve ? 

To carry into effect the laws already passed, it is necessary and 
proper that you should have a police-force composed of spies and dela- 
tors, who will thrust themselves into the kitchens and bed-chambers 
of all families, employ eavesdroppers who will watch them at key- 
holes and windows, or, in default of that, change the rules of evidence 
(as a committee of the Senate has actually proposed) and compel the 
lawful husband and wife to testify against one another in contemptu- 
ous defiance of the great principles which protect the sanctities of the 
family, and lie at the basis of civil society. 

It is perfectly clear that if your claim to exclusive jurisdiction be 
established, so as to comprehend the power to punish men and women 
for making family arrangements which you disapprove, you have au- 
thority to define all offenses : anything is a crime which you choose to 
call so, and everything is innocent which you think proper to tolerate. 
You may therefore make an entire criminal code for them, and you 



FORENSIC. 603 

may make it as pernicious as you choose. It need not be '' a terror to 
evil-doers, or a praise unto them that do well," if you wish to have it 
otherwise. The virtue may be visited with joenalties ; justice, chas- 
tity, temperance, and truth may be sent to the penitentiary ; swin- 
dling and perjury may be legalized. Taking the exceptional jurispru- 
dence of Sj^arta as a model, larceny may become a merit ; or, following 
a more recent precedent in the Congressional government of the 
South, you can maintain the worst men in the highest offices, throw 
the reins loose on the neck of rapacity, make leprous fraud adored — 

" Place thieves, 
And give them title, knee, and approbation, 
"With Senators on the bench." 

If you have not only the right, but the exclusive right, to do this, 
it must be acknowledged that there is no use for a local government ; 
it is merely in your way, and accordingly you have already begun to 
abolish it. Agents appointed under your laws have gone down with 
instructions to take possession of all the polling-places and registra- 
tion-offices, and the people were expressly forbidden to vote except by 
their permission and under their supervision. They construed your 
law as a bill of pains and penalties which attainted the whole popula- 
tion, and they ordered every voter to be disfranchised who would not 
take an expurgatory oath that covered his whole life. Another set of 
agents assert that they have your direction to seize all the territorial 
offices, and distribute them as booty among the enemies of the peo- 
ple. One more step, an easy and a short one, you are much urged 
to take, and that is to send a commission upon them with power, 
not only to supervise them when they vote, and deprive whom they 
please of the ballot, but to make and execute all laws on every subject, 
and to govern them generally as an overseer might govern a plantation 
of slaves. 

Of course it is possible that the Territory might be controlled 
justly, wisely, and moderately by the hirelings of the Federal Govern- 
ment. But the chances are a thousand to one that they would act 
as persons in that situation have always acted : oppress and plunder 
their subjects, steal their money, and tax their industry to death. . 
This might provoke the resistance of the most patient people,. and the 
first symptom of disorder would furnish a legal excuse for cutting 
them up root and branch. Arbitrary rulers pardon nothing to the 
spirit of liberty. 

Has Congress this exclusive power of legislation for a Territory ? 
Or does it belong to the people of the Territory and to the representa- 
tives whom they have chosen to intrust with it ? I maintain that the 
right of local self-government is founded on acknowledged principles 
of public law ; it existed before this Government was framed, and the 
39 



604: FORENSIC. 

Constitution reserves it to the people of the Territories as distinctly 
as to the States. 

Look at the practical case : citizens of a State or of several States 
leave the place of their residence and go out with their families to 
colonize themselves on the public domain of the Union, beyond the 
limits of any State. They buy the land and settle upon it with the 
consent of the General Government, to which it belonged, whereby 
they became a separate body detached from all others. Have they 
ceased to be free ? Did they leave their liberties behind them ? Have 
they not a natural right to regulate their daily lives and adjust their 
private relations by such laws as they think will be most suitable to 
their condition and best promote their interest ? Yes, they have, un- 
less they are slaves ; for the freedom of the community results neces- 
sarily from the freedom of the individuals that compose it. 

I do not assert that they can govern themselves in a way forbidden by 
the Federal Constitution, or by an act of Congress passed in pursuance 
thereof. The people of a State can not do that. What I do assert is 
that Congress can not legislate for a Territory on any subject-matter 
on which it can not legislate for a State. This furnishes an easy and 
infallible test of constitutionality. If Congress may regulate marriage 
and divorce in a State it may do so in a Territory ; if not, not. 

It is true, also, that the General Government may give the colo- 
nists a charter, and call it an act of incorporation or an organic law. 
This was what the imperial government of England did for the several 
colonies that settled on its lands in America. But the charter must 
be a free one. If it abridges the liberty of the people to do as they 
please about matters which concern nobody else, it is void. Even if 
the colonists would consent, for a consideration, to accept an organic 
law imposing a restraint upon their right of self-government, they 
could throw it off as a nullity ; for the birth-right of a freeman is 
inalienable. I need not say that foreigners naturalized are on a level 
with native citizens. 

As Congress can not give, so it can not withhold, the blessing of 
popular government in a Territory. But the legislation now proposed, 
in addition to that already passed, would blacken the character of the 
Federal Government with an act of cruel perfidy. The charter you 
gave to Utah was in full accordance with the broad principles of 
American liberty. You organized for them a free territorial govern- 
ment, put into their hands all the machinery that was needed to carry 
it on ; the ballot to be used under regulations of their own ; officers 
choseni by themselves to administer their local affairs, collect the taxes 
and take charge of their money ; and a legislature representing them, 
responsible to them, clothed with exclusive power to make their laws, 
and to alter them from time to time as experience might show to be 
Just and expedient. Gilding your invitation with this offer of free 



FORENSIC. 605 

government, you attracted people from every State, and from all parts 
of the civilized world, whose industry scattered plenty over that barren 
region, and made the desert bloom like a garden. Now you are urged 
to break treacherously in upon their security — supersede the laws which 
they approve, by others which are odious to them ; make their legisla- 
tion a mockery, by declaring that yours is exclusive ; drive out the 
officers in whom they confide, and fill their places with raging and 
rapacious enemies ; take away their right of suffrage, and with it all 
chance of peaceable redress ; break down the whole structure of the 
territorial government, under which you promised to give them a per- 
manent shelter. Would not this be a case of Punic faith ? Apart from 
all question of constitutional morality, the conduct of the wrecker who 
burns false lights to mislead the vessel he wishes to plunder does not 
seem to me more perfidious. If it has the same appearance to you, it 
will be swept away with the scorn it deserves. But let us keep to the 
point of law. 

The relations of the colonies to Great Britain were precisely the 
same as those which exist between what we call the Territories and 
the General Government of the United States. By the public law of 
the world the colonies had the right of local self-government. The 
imperial Parliament, omnipotent at home, was utterly without power 
to legislate on the domestic affairs of any community settled upon 
crown lands sold or given to them on this side of the Atlantic. This 
freedom was not only asserted by the colonists, but for more than a 
century they were allowed to enjoy it without disturbance. The ex- 
clusiveness of their right to legislate for themselves, the extent to 
which it was exercised, and the range of subjects it embraced, are 
known to all who have read their history. 

In those days the doctrine of perfect religious freedom was un- 
known ; it was regarded as a proper function of the civil authority to 
punish whatever it deemed false theology. This power, like others, 
belonged to the colonies. When heretics, proscribed in England by 
the laws in force there, fled beyond the sea and organized a colony, 
they not only escaped persecution, but acquired the right to persecute 
others. By some of the colonies this power was much abused ; but 
the Parliament could not interfere to prevent it. The king sent Lord 
Baltimore and a large body of his retainers to Virginia with a grant 
of land and a letter to the colonial authorities requesting that he 
might not be molested on account of his religion. The colonial legis- 
lature resented this as an interference with their established right of 
self-government, and replied to the king that if Lord Baltimore prac- 
ticed the Catholic religion within their territory he must submit to 
such penalties as they chose to inflict. The royal mandate was with- 
drawn ; Lord Baltimore was moved above the Potomac, where he and 
his friends erected a colony of their own, and that colony excited the 



606 FORENSIC. 

disgust of Parliament and the indignation of Virginia by tolerating all 
kinds of religion. 

I mention these tilings to show that self-government in its broad- 
est sense was claimed by and conceded to the colonies. Then home 
rule extended to matters of religion, as it did to all other affairs within 
the scope of the civil authority. Here and now the conflict between 
Federal power and the rights of a State or Territory could not take 
that shape, inasmuch as legislation on such subjects is excepted for- 
ever out of the power of all government. 

But suppose by a stretch of your imagination that Parliament, led 
by some ultra Tory, had undertaken to prescribe what family relations 
should exist in a particular colony, provide the severest jDcnalties to 
enforce the regulations by penalties in direct conflict with the popular 
sense of duty and against pre-existing laws, customs, and opinions. 
What would history have said about such a Parliament ? But sup- 
pose, further, that the same Parliament, to remove impediments from 
the way of its act, broke down all the free institutions of the colony, 
forbade trial by jury unless the jury was packed, disfranchised the 
legal voters, prevented elections that were not supervised by agents of 
the ministry, ordered the expulsion of all officers already chosen, and 
replaced them by avowed enemies, with power to tax and cheat them 
at will. Could such measures as these against any of the colonies have 
found one unprejudiced and honest defender in the world ? 

In fact and in truth nothing nearly so atrocious was proposed or 
attempted. The stamp act, the tax upon tea, the prohibition of cer- 
tain manufactures, the Boston port bill, and other restrictions upon 
trade, were trifles in comparison. But they reached the vitals of civil 
liberty simply because they denied the principle of perfect home rule 
in the colonies ; they asserted a jurisdiction in Parliament which was 
inconsistent with the right of the colonies to govern themselves in 
matters which affected their own rights, interests, and feelings. There- 
fore those measures kindled a blaze of indignation in every colony. 
All true men in America pledged their lives, their fortunes, and their 
sacred honor to ''throw off the shackles of usurped control," and in 
the outcome they did *' hew them link from link." The friends of 
liberty in England sided with patriots here. Burke and Fox made 
the defensive sophistry of ministers contemptible ; Chatham declared 
that if Americans submitted they would become slaves themselves, 
and fit instruments to enslave others. "I rejoice," said he, ''that 
America resisted." 

If there be anything fixed, established, and undeniable as a propo- 
sition of public law, it is the natural right of a free community like 
Utah to govern itself. It is impossible for a member of Congress not 
to know that the success of our Kevolution was an acknowledged tri- 
umph of th^t principle. English and American supporters of Lord 



FORENSIC. 607 

North's ministry may have been conscientious in their opposition to 
this doctrine, and upright statesmen may dissent from it now ; but it 
is not easy to see how any man can believe in the rightfulness of these 
aggressions upon Utah, except for reasons which would have made 
him a Tory if he had lived in the time of the Revolution. 

I have said that these people have a natural right to govern them- 
selves ; but I admit that this natural right may be abridged by funda- 
mental arrangement. That is to say, the right of legislation for a 
Territory upon some subjects or all may be taken away from the people 
and vested in Congress by the Federal Constitution. AVould it not be 
a shocking surprise to discover in that instrument a provision so hos- 
tile to the liberty for which they had fought and toiled for seven 
years ? You will find upon looking at the Constitution that it is not 
there. 

But the unlimited sway which the power of exclusive legislation 
would give has, at different times in our history, been much desired by 
members of Congress and by friends of theirs who cast their covetous 
eyes on offices and property which did not belong to them. Before 
the industry of Utah had made it rich enough to be worth robbing, 
the notion was started that if the Southern States could be reduced to 
the condition of Territories, the absolute domination of Congress over 
them through the instrumentality of carpet-baggers and bayonets 
would become constitutional. Therefore the first step was to declare 
that the State governments did not legally exist ; the States were said 
to be Territories, and, as a consequence, supposed to be at the mercy of 
Congress. 

Mr. Thaddeus Stevens, the gi*eat leader and driver of that day, 
who ruled Congress with a sway that was boundless, thought it best in 
the beginning to assure his followers that the Constitution had given 
to Congress this power over the Territories. To prove it he showed 
them the following provision : 

" The Congress shall have power to dispose of and make all need- 
ful rules and regulations respecting the territory and other property of 
the United States, and nothing in this Constitution shall be so con- 
strued as to prejudice any claims of the United States or of any par- 
ticular State." 

That this expressed nothing, and meant nothing, and granted 
nothing to Congress, except the power to exercise for the General 
Government its purely proprietary rights over the land and goods it 
possessed, whether lying within the States or outside of them, was so 
perfectly manifest that Mr. Stevens became disgusted with his own 
argument ; he freely expressed his profound contempt for it, and for 
all who pretended to believe it. Having drawn them into it by his 
glozing speech, his fierce invective lashed them out again ; and he so 
''chastised them with the valor of his tongue," that they feared to 



608 FORENSIC. 

speak of scruples any more. He did not, because lie could not, fur- 
nish them any other pretense to stand upon ; and he told them plainly 
and frankly that he would not stultify himself by professing to think 
his measure constitutiont^l. " This," said he, *'is legislation outside 
of the Constitution." It was passed, and Congress inaugurated the 
reign of the thief and the kidnapper by an acknowledged usurpation. 

The outrages upon liberty in Utah are not grounded on the theory 
which Mr. Stevens exploded. It is not now pretended that the forci- 
ble rupture of private relations, seizure of ballot-boxes, disfranchise- 
ment of voters, expulsion of territorial officers, are needful rules and 
regulations for the disposal or use of Federal property. " The Ed- 
munds' bill " (which could not have been drawn by the Senator of 
that name) assumes and expresses the assumption, in unequivocal 
words, that tlie United States have exclusive jurisdiction in a Terri- 
tory. This is much worse than the other ; it is not merely a false 
construction of the Constitution : it is an attempt to put into the 
Constitution what is not there. 

When a man who knows anything about American institutions 
asserts that the United States have exclusive jurisdiction in a particu- 
lar place, he means to say that the Constitution has given to the Fed- 
eral Legislature and Executive the sole authority to make and enforce 
all laws in all cases for and against all persons in that place. There 
are places in which this omnipotent and exclusive power is given to 
Congress, but to say that it extends to Utah or any other Territory is 
simply false. Look at the Constitution and see for yourselves. Among 
the enumerated powers of Congress is this — 

*' To exercise exclusive legislation, in all cases whatsoever, over such 
district (not exceeding ten miles square) as may by cession of particu- 
lar States, and the acceptance of Congress, become the seat of Govern- 
ment of the United States, and to exercise like authority over all places 
purchased by the consent of the Legislature of the State in which the 
same shall be for the erection of forts, magazines, arsenals, dock-yards, 
and other needful buildings." 

There is the only grant of exclusive jurisdiction that can be found 
in the instrument. It is plainly intended to and does cover the Dis- 
trict of Columbia. The authority is granted with equal clearness over 
the places occupied by the forts, arsenals, magazines, and dock-yards ; 
but does it say that it may be exercised in the Territories ? No ; '' it 
is not so nominated in the bond." 

This is no point of interpretation, strict or loose. "Whether the 
Constitution grants or does not grant the power of exclusive legisla- 
tion over the Territories to Congress is a question of fact to be deter- 
mined by mere inspection. The ocular proof that no such grant is 
there can not be overcome, or in the slightest degree weakened, by any 



FORENSIC. 609 

kind of construction, however smart ; much less can the omission be 
supplied by a bald interpolation. 

If the power is not given to Congress in and by the Constitution, 
then Congress has it not at all. This is a Government of enumerated 
powers. It is part of the instrument itself that powers not granted 
are reserved. 

Nobody has ever been mad enough to say that such laws as these 
against Utah could be enforced against a State ? Why ? Because 
the Constitution gives Congress no jurisdiction or authority to pass 
them. But it does give exactly the same power of legislation over a 
State as over a Territory. The right of freemen to be exempt from 
the scourge of the central power is, therefore, as well secured in one 
as in the other. 

The powers not granted to the United States are reserved to the 
States respectively, or to the people, and the enumeration of particular 
rights expressly retained does not disparage or deny others on which 
the instrument is silent. This being the express rule, it will hardly 
be asserted that the power now in question is not reserved. To whom 
is it reserved ? To the States respectively where there are States, or, 
in a Territory where no State government exists, there it is reserved 
to the people. The reservation is as clear and express in one case as 
in the other. In both, the power of local self-government rests and 
remains where it was placed by God and Nature, since it was not re- 
moved by the Constitution and lodged elsewhere. 

The General Government is a political corporation, with powers 
defined in its charter. Outside of the charter all its acts are void, as 
would be the similar acts of any other corporation. Suppose the di- 
rectors of the Illinois Central Eailroad Company, out of their pious 
regard for the moral and spiritual welfare of Chicago, would pass a 
law to reform the licentiousness, gambling, drunkenness, and other 
vices there supposed to be practiced, imposing penalties of fines, im- 
prisonment, and disfranchisement upon all prostitutes and keepers of 
disorderly houses, would anybody be bound by their statutes ? Yet 
their power to pass them and enforce them would be just as good as 
yours to do the same thing either for Illinois or Utah. 

There are other objections to this legislation against Utah. It is 
not only wwconstitutional, but «w^^constitutional. It assumes a 
power not granted, and then commands it to be enforced by means 
flatly prohibited. Let me call your special attention to some of them. 

I. Trial by jury means by a jury of the country, the peers of the 
party, selected impartially from the general population, so as to rep- 
resent a fair average of the public understanding and moral sense. 
That is the kind of jury that every man is entitled to have who pleads 
not guilty, and puts himself on God and the country for trial. That 
is the meaning of the word jury as used in the decrees of Alfred, the 



610 FORENSIC. 

statutes of Edward the Confessor, Magna Charta, the Petition of 
Eights, the Bill of Eights, and the American Constitution. In that 
sense it is used by all English-speaking peoples, and with that sense 
attached to it the institution has been adopted by other nations. The 
right of trial by jury is withheld by the Edmunds' law or given in a 
mutilated form, which makes it hardly better than a military commis- 
sion, '^ organized to convict." 

The body of the population believe, as matter of moral and relig- 
ious sentiment, that polygamy is at least so far right that a law which 
makes it a penal offense is unjust and impolitic. The antipopular 
faction, composing about one twentieth, justify their machinations 
against the others by expressing a most violent antipathy to that par- 
ticular feature of the prevailing doctrine which permits of plural 
marriages. 

That is their religion, their politics, their business, their law ; they 
carry.it into everything ; to them it is piety and patriotism ; it stands 
in the place of faith, hope, and charity ; from among them, hardly 
numerous enough to be called a minority, the act of Congress arranges 
that the jury shall be exclusively made up ; the country, the body of 
the people, is not to be represented at all. 

A juror may be questioned on his oath whether " he believes it 
right for a man to have more than one living and undivorced wife at 
the same time, or to live in the practice of cohabiting with more 
than one woman." If he refuses to answer, or answers in the 
affirmative, he is conclusively presumed to be one of the people, and 
must be rejected ; but if he replies " No," he has spoken the watch- 
word of the inimical faction, and he is admitted, because his ascer- 
tained hostility to the party accused, and all his class, may be relied 
upon as an element of his verdict. 

All officers concerned in a trial under this law are required to sift 
out the panel, and see that no one gets on who will not jump at every 
chance of conviction. The summoning-clerk must be what is called 
in Philadelphia a *' jury-fixer " ; your judges must bring themselves 
within the old statute against " evil procurers of dozens," that being 
the designation of certain persons who made it a business and a trade 
to find twelve men predetermined on a verdict desired by the party 
who employed them. 

An attempt has been made and will be again to justify this unreal 
mockery of a trial by saying that unless you pack the juries you can 
not get convictions. As matter of fact this may be true. Generally 
it is vain to hope that a jury of the country, representing the popular 
feeling and sense of right, will carry out to its bitter end a law re- 
garded by the mass of the people, whether rightly or wrongly, as un- 
just, oppressive, and cruel. That is why we have juries. For that 
reason trial by jury is the great safeguard of civil liberty. To make 



FORENSIC. 611 

them eflBcient to that end they are judges of the law as well as the 
facts, and their verdict on both is conclusive. By the exercise of this 
power they have nullified tyrannical statutes many times. You can 
not but remember the notable case of AVoodfall, when the life of Eng- 
lish liberty was saved at its last gasp by the stubborn refusal of the 
jury to find a verdict according to the law of libel, as laid down by 
Lord Mansfield. The sentiments of the people were not consulted 
when you made this law, but you can not evade their judgment upon 
it when it comes to be executed. They were not represented in Con- 
gress, but they must be represented on the jury. The effort now 
made to substitute a packed jury for a jury of the country is a very 
poor attempt to defeat the most sacred right which the Constitution 
guarantees. I solemnly trust that it will turn out as impotent as it is 
unauthorized. 

II. The promoters of the law in question, not satisfied with try- 
ing their victims by a court and jury composed of their enemies, con- 
cluded to go a little further, and punish them without any trial at all. 
The frightful penalty of disfranchisement is to be visited upon them 
without conviction. Men were directed to be stripped of their citi- 
zenship, rendered incapable of voting, expelled from offices to which 
they had been legally chosen, and deprived of all right to participate 
in the government they lived under, for crimes of which they were 
never even accused before any legal tribunal. Commissioners are 
appointed to carry this out, who, reversing the iiresumption of law, 
and declaring the whole population to be guilty, proceeded to convict 
individuals by a test-oath of their own fabrication. 

The right to do such things as these does not depend on the juris- 
diction of Congress over the Territories. No matter how exclusive 
your power may be, you can not exercise it in a fashion like that. 
The Supreme Court decided that the State of Missouri could not put 
such a provision in her Constitution. It is a bill of pains and penal- 
ties, or bill of attainder, which is expressly forbidden by the Constitu- 
tion. There is no legislative body on this continent that has author- 
ity, by an arbitrary decree, to deprive freemen of their civil rights for 
offenses of which they are not judicially convicted. It is a burning 
shame that such a decree should be found among the acts of Congress. 

If any man thinks that disfranchisement is not punishment, or 
that the judgment of an election officer is equivalent to a legal convic- 
tion, let him read the opinion of the Supreme Court of the United 
States in Cumming's case (4 Wall.), delivered by Judge Field, or the 
clear and unanswerable exposition of the subject given by Judge 
Strong, Huber vs. Eeily (3 Persifer Smith). If he does not believe 
on such authority and such reasoning, he would not believe though 
one rose from the dead. 

III. When I first read this law, I did not believe that its support- 



612 FORENSIC. 

ers really wished it to operate upon any but persons who might be 
legally convicted of offenses thereafter committed. The words are 
capable of that construction, and it is not fair, if it can be avoided, 
to suppose that a legislator intends to violate the Constitution. But 
the debates show that I was mistaken upon the matter of fact. The 
actual intent was to make it ex post facto. The commissioners so un- 
derstood it, and they were subservient enough to carry it out. They 
gave it a retroactive effect, which reached back for a whole generation, 
and laid its punitive lash not only on men who were never convicted, 
but upon men (and women too) who could not be convicted because 
their offenses were condoned, because they were protected by the stat- 
ute of limitations, or because they had been already tried and acquitted. 
Nothing was a defense against this iniquitous act, which suddenly, 
without warning or trial, reached back like the terrible hind-hand of a 
gorilla and throttled all that it grasised. An argument certainly can 
not be necessary to prove that this is an outrage on the Constitution, 
as well as on the principles of natural justice. 

IV. But the pains and penalties of disfranchisement are to be car- 
ried still further. By the laws of Utah the right of suffrage belongs 
to women as well as men. It was bestowed upon them formally and 
rightfully by the Territorial Legislature, with the consent of the 
United States, expressed by the Governor, who had an absolute veto. 
There is no kind of doubt about the right being legally vested. This 
is so clear and unquestionable that the Federal Judges themselves, 
with every inclination to exclude them from voting, were compelled 
to decide that it could not be done. Of this acknowledged right it is 
now proposed to de|)rive them by a bill of pains and penalties, not 
grounded upon any pretense of guilt, but coupled with an admission 
that the suffering parties are perfectly innocent. 

It will hardly be pretended that the rights of a woman, when once 
legally vested, are less sacred than those of a man, or that he more than 
she is protected by the Constitution against the wrath and malice of 
political rulers. If the male voters of Utah are free men, the females 
are free women. One is no more subject to be disfranchised by a bill 
of pains and penalties than the other. Can either of them be so 
treated ? 

The right of suffrage is part of a voter's property. Its value is 
inestimable, because it is the right preservative of all other rights. 
You can not deprive him of it without due process of law. You can 
as well make a legislative decree to take the lands and goods of these 
men and women in Utah as take the ballot from them. The ballot is 
especially valuable to them at this moment, as their only weapon of 
defense against the enemies who are prowling around them to capt- 
ure their government and use it as an engine to plunder and oppress 
them. The security, not of their liberties only, but of their peace, 



FORENSIC. 613 

property, and lives, depend upon their being able to keep it. The sin 
of tnese otherwise innocent and virtuous women has consisted solely 
in voting to sustain honest government against the rapacity and fraud 
which seek to overthrow it. 

V. The end and object of this whole system of hostile measures 
against Utah seems to be the destruction of the popular rule in that 
Territory. I may be wrong — for I can only reason from the fact that 
is known to the fact that is not known — but I do not think that the 
promoters of this legislation care a straw how much or how little the 
Mormons are married. It is not their wives, but their property ; not 
beauty, but booty — that they are after. I have not much faith in po- 
litical piety, but I do most devoutly believe in the hunger of politi- 
cal adventurers for spoils of every kind. How else can you account 
for the struggle they are now making to get possession of all the local 
offices in the Territory, including the treasurer, auditor, and all de- 
positories of public money ? If they do not want to rob tlie j^eople, 
why do they reach out their hands for such a grab as this ? 

If you will look at what is called the Hoar Amendment, consider 
how it came to be put into the appropriation bill of last session, and 
reflect upon the nefarious claim which the Governor and his adherents 
are now making under it to despoil the people of the local offices 
which they alone have the right to fill, you will be forced to the con- 
clusion that the public liberty of no people has ever before been so 
shamelessly assaulted. I do not say that the claim is sustained by the 
law, or that Congress had any intention to authorize the robbery ; for 
I am satisfied of the contrary ; but the animus of the anti-popular 
faction is revealed by the whole transaction in a light that utterly dis- 
credits it. 

Legally it makes no difference what was the ultimate purpose of 
those who instigated this political enterprise. But will you, as friends 
of the Constitution — could you, even if you were its enemies — say that 
Congress has power to decree the removal of Territorial officers, and 
direct their places to be filled by others ? Even if you could justify 
the outrage upon the people of removing the agents to whom they 
have entrusted their money and their business, and forcing upon them 
others in whom they have no confidence, what right have you to de- 
prive individuals of their property without due process of law ? Their 
offices are property in which, like their goods and lands, they have a 
legally vested estate. The Hoar Amendment is construed (falsely, I 
admit) as authorizing all these offices to be seized, and used as a 
means of forcing the people to maintain their enemies and pay them 
salaries for any acts of oppression and fraud which they may choose to 
perpetrate. 

Do not charge me with overstating the danger to which the Terri- 
tory will be exposed if its government shall be captured by those who 



614 FORENSIC. 

are now trying to take it. The experience of the whole world in all 
time shows that the want of home rule is the want of everything else 
that is honest and fair. Kulers forced upon a people are never just. 
It is as certain as the rising of the sun to-morrow that if the people 
are put under foot they will be trampled down without mercy. And 
their total destruction will be accomplished very soon. They can not 
stand what South Carolina did ; there is no ''ten years of good steal- 
ing" there. 

VI. No reasonable man can justify or even excuse such enact- 
ments as those proposed in the new bill now pending before you, 
unless it be assumed that the people of Utah have no rights that a 
white man is bound to respect. 

It appoints a commission to perform the functions of the Legislat- 
ure and to redistrict the Territory. The apparent purpose of this is 
to gerrymander the districts so as to give the minority control of the 
legislative body. With a majority of nearly twenty to one, the com- 
mission will find the way to that object so steep and crooked that they 
scarcely can hope to reach it. But the cunning man who drew this 
bill inserted a provision that the " existing election districts and ap- 
portionments of representation concerning members of the Legislative 
Assembly are hereby abolished.''^ There can be no election at all for 
members of the Legislature unless new districts are made by this com- 
mission. By simply declining to act it can extinguish the Territorial 
Legislature altogether. That was the very trick by which the election 
of the Territorial officers was defeated last August. The Edmunds' 
bill declared that all registration and election offices should be vacant 
until they were filled by appointments of certain commissioners. 
Those commissioners would not make any appointments until after 
the time for holding the election had passed, and so there was no elec- 
tion. To expect that the same game will not be played over again 
requires the charity that believeth all things. This bill would put 
the extinction of the Territorial Legislature into the power of a single 
member of the commission, for the redistricting is to be done, not by 
a majority, but by all, and a dissent of one would make the action of 
the others inoperative. 

It would be wearisome to say what might be said about those parts 
of this bill which authorize a person to be kidnapped and held as a 
witness who has not been subpoenaed or notified, its subjection of pri- 
vate papers to unreasonable searches and seizures, or the inhuman dis- 
regard which it shows of family feeling, and the sanctities of private 
life, by compelling men and women lawfully married to testify against 
one another. 

VII. These enactments, made and proposed, are in the main a 
comprehensive bill of pains and penalties, not against persons guilty 
or supposed to be guilty of polygamy or any other hurtful crime, but 



FORENSIC. 615 

against people known and acknowledged to be innocent. They are 
intended to disfranchise whole masses of free persons, reduce them to 
the condition of slaves, and deprive a community of its natural and 
constitutional right to an honest government of its own. For such a 
bill there is not only no warrant in the Constitution, but it is expressly 
interdicted. Nor is there any precedent for it except the Reconstruc- 
tion Laws of 1867, and they were admitted to be unconstitutional by 
their author, and by the counsel who undertook to defend them, and 
to my certain knowledge they would have been declared void by the 
Supreme Court in the case of McArdle, if we had not been circum- 
vented by an act of Congress taking away the jurisdiction. It is true 
that they were made effectual, but it was done by the Fourteenth 
Amendment. The opponents of free government in the South, know- 
ing that Congress had no such power, forcibly injected their bill of 
pains and penalties into the Constitution itself, and there it lies now, 
side by side with the provision which forbids it. But the injection 
served only for that occasion ; it did not abrogate the prohibition. 
Bills of pains and penalties are as odious as ever. It is the duty of 
every public man and every private citizen to hate such things with 
all his mind and heart and strength, as I hope you do. 

Coming back to the original and fundamental proposition, that you 
have no authority to legislate about marriage in a Territory, you will 
ask what then are we to do with polygamy ? It is a bad thing, and a 
false religion that allows it. But the people of Utah have as good a 
right to their false religion as you have to your true one. Then you 
add that it is not a religious error merely, but a crime which ought to 
be extirpated by the sword of the civil magistrate. That is also con- 
ceded. But those people have a civil government of their own, which 
is as wrong-headed as their church. Both are free to do evil on this 
and kindred subjects if they please, and they are neither of them an- 
swerable to you. That brings you to the end of your string. You 
are compelled to treat this offense as you treat others in the States and 
in the Territories — that is, leave it to be dealt with by the powers 
that are ordained of God or by God himself, who will in due time 
become the minister of his own justice. 



616 FORENSIC. 

THE SOUTH CAROLINA CASE. 

BEFOEE THE ELECTORAL COMMISSION. 

Mr. President and Gentlemefi : 

I had not, and have not now, any intention to argue this case. 1 
never heard the objections nor knew what they were until they were 
read in your presence this morning. It would be presumption in me 
to attempt an argument before a tribunal like this on such a case as 
this, having had no previous opportunity to consider it, which might 
put me in a condition better than the judges themselves. You have 
heard as much of this case and know as much about it as I do. 

My idea of the duty which a counselor owes to a court or to any 
other tribunal, judicial or quasi-judicial, is that he should never open 
his mouth except for the purpose of assisting the judges in coming to 
a correct conclusion ; and if he is not in a situation to do that he 
ought to keep silence. 

Besides that, I am, I suppose, the very last man in this whole na- 
tion who should be called upon to speak here and now. Everybody 
has suffered more or less by events and proceedings of the recent past, 
some by wear and tear of conscience, and some by a deep sense of op- 
pression and wrong. But perhaps I, more than most others, have felt 
the consciousness that I have lost the dignity of an American citizen. 
I, in common with the rest, am degraded and humiliated. This nation 
has got her great big foot in a trap. It is vain to struggle for her ex- 
trication. 

I am so fallen from the proud estate of a free citizen, you have so 
abjected me, that I am fit for nothing on earth but to represent the 
poor, defrauded, broken-hearted Democracy. And because I suffer 
more, they think me more good for nothing than the rest, and con- 
clude to send me out on this forlorn hope, judging, no doubt truly, 
that it matters not what becomes of me. I ought to go gladly if 
anything which I can do or say might have the effect of mitigating the 
horrible calamity with which the country is threatened ; a President 
deriving his title from a shameless swindle, not merely a fraud, but 
a fraud detected and exposed. I know not how I would feel if called 
upon to suffer death for my country. I am not the stuff that martyrs 
are made of, but if my life could redeem this nation from the infamy 
with which she is clothed, I ought to go to the grave as freely as I ever 
went to my bed. I see, however, no practical good that I can do, and 
it is mere weakness to complain. 

We have certain objections to the counting of this Hayes vote 
from South Carolina which look to me insuperable, but I can not 
hope that they will wear that appearance in other men's eyes. Per- 
haps the feeling which I, in common with millions of others, entertain 
on this subject prevents us from seeing this thing in its true light. 



FORENSIC. 617 

But you are wise, you are calm. You can look all through this awful 
business with a learned spirit : no passionate hatred of this great fraud 
can cloud your mental vision, or shake the even balance of your judg- 
ment. You do not think it any wrong that a nation should be cheated 
by false election returns. On the contrary, it is rather a blessing which 
heaven has sent us in this strange disguise. When the omnipotent 
lie shall be throned and sceptered and crowned you think we ought all 
of us to fall down and worship it as the hope of our political salvation. 
You will teach us, and perhaps we will learn (perhaps not), that under 
such a rule we are better ofE than if truth had prevailed and justice 
been triumphant. 

Give, then, your cool consideration to these objections, and try 
them by the standard of the law — I mean the law as it was before the 
organization of this Commission. I admit that since then a great 
revolution has taken place in the law. It is not now what it used to 
be. All our notions of public right and public wrong have suffered a 
complete houleversement. 

The question submitted to you is whether the persons who gave 
these votes were "duly appointed." Duly, of course, means according 
to law. What law ? The Constitution of the United States, the acts 
of Congress passed in pursuance thereof, the Constitution of South 
Carolina and the authorized acts of her Legislature — these, taken alto- 
gether, constitute the law of the case before you. 

By these laws the right, duty, and power of appointing electors is 
given to the people of South Carolina — that is to say, the citizens of 
the State qualified to vote at general elections. Who are they ? By 
the Constitution of the State, in order to qualify them as voters they 
must be registered. The registry of a native citizen is a sine qua non 
to his right of voting as much as the naturalization of a foreigner. 

Now, the Legislature never passed any law for the registration of 
voters, and no registration of them was ever made. No doubt has 
been or can be entertained that the object and purpose of this omis- 
sion were fraudulent and dishonest : for the Legislature as well as the 
executive department of that government has been in the hands of 
the most redemptionless rogues on the face of the earth. But what- 
ever may have been the motive, nobody can doubt that the legal effect 
of this omission is to make the election illegal. 

That is hardly the worst of it. The election itself, emancipated 
from all law and all authority, was no better than a riot, a mob, a gen- 
eral saturnalia, in which the soldiers of the United States army cut 
the principal as well as the decentest figure. We offer to prove — the 
offer will go upon record, and there it will stand forever — that every 
poll in Charleston County, where they rushed into the ballot-box 7,000 
majority, was in possession of the soldiers. 

A Government whose elections are controlled by military force car 



618 FORENSIC. 

not be republican in form or substance. For tliis I cite the author- 
ity of Luther vs. Borden, if perchance the old-time law has yet any 
influence. Do you not see the hideous depth of national degrada- 
tion into which you will plunge us if you sanctify this mode of mak- 
ing a President ? Brush up your historical memory, and think of 
it for a moment. The man whom you elect in this way is as purely 
the creature of the military power as Caligula or Domitian, for 
whom the Praetorian Guards controlled the hustings and counted the 
votes. 

But then we can not get behind the returns, forsooth ! Not 
we ! 

You will not let us. We can not get behind them. No. That is 
the law, of course. AVe may struggle for justice ; we may cry for 
mercy ; we may go down on our knees and beg and woo for some little 
recognition of our rights as American citizens ; but we might as well 
put up our prayers to Jupiter or Mars as bring suit in the court where 
Rhadamanthus presides. There is not a god on Olympus that would 
not listen to us with more favor than we shall be heard by our adver- 
saries. We are at their mercy ; it is only to them that we can appeal, 
because you gentlemen unfortunately can not help us. You are bound 
by the nev^ law which you have made. You are, of course, addicted, 
like other people, to the vice of consistency, and what is done once 
must be done over again. 

In the Louisiana case the people appointed electors in favor of Til- 
den, recorded their act, finished it, and left their work in such a state 
that nobody could misunderstand it. But other persons, who had no 
power to appoint, falsified the record of the actual appointment, partly 
by plain forgery and partly by fraud, which was as corrupt in morals 
and as void in law as any forgery could be. You thought it right and 
legal and just to say that you would not look at the record which the 
people had made ; the forgery, the fraud, and the corruption were too 
sacred to be interfered with ; the truth must not be allowed to come 
in conflict with the imposture, lest the concussion might be damag- 
ing. 

This precedent must be followed. It is new law, to be sure, but 
we must give it due welcome ; and the new lords that it brings into 
power must be regarded as our "very noble and approved good 
masters." Having decided that electors were duly appointed in Lou- 
isiana who were known not to be appointed, we can not expect 
you to take notice of any fact similar or kindred to it in South Caro- 
lina. 

Then, again, the question of " duly appointed" was decided in the 
case of Levissee, an elector who was an oflicer of the United States 
Government at the time he was appointed, and continued to be after- 
ward. The Federal Constitution says that no man shall be appointed 



FORENSIC. 619 

who is in that relation to the Federal Government. But you held, 
according to law, mind you, that he was a lawful elector, and his vote 
a good vote. In other words, a thing is perfectly constitutional 
although it is known to be in the very teeth of a constitutional inter- 
dict. 

Now you see why we are hopeless. The present state of the law 
is sadly against us. The friends of honest elections and honest gov- 
ernment are in deep despair. We once thought that the verifying 
power of the two Houses of Congress ought to be brought always into 
requisition for the purpose of seeing whether the thing that is brought 
here is a forgery and a fraud on the one hand, or whether it is a genu- 
ine and true certificate on the other. 

But, while we can not ask you to go back behind this certificate, 
will you just please to go to it — only to it — not a step behind ? If you 
do you will find that it is no certificate at all such as is required by 
law. Tlie electors must vote by ballot, and they are required to be on 
oath before they vote. That certificate does not show that either of 
these requirements was met, and where a party is exercising a special 
authority like this they must keep strictly within it, and you are not 
to presume anything except what appears on the face of their act to 
be done. 

If anybody will cast back his mind a little into the history of presi- 
dential elections, or look at the debates of less than a year ago, he will 
remember that Mr. Jefferson was charged, when he was Vice-Presi- 
dent of the United States, with having elected himself by means, not 
of a fraudulent, but a merely informal vote sent up from Georgia. 
The informality was not in the certificate inside of the envelope, but 
outside verification. Mr. Matthew L. Davis, in 1837, got up that 
story. It was not true, but it was believed for a while, and it cast 
great odium on Mr. Jefferson's memory. It was not an informality 
that was nearly as important as this, nothing like it. But one of the 
Senators now on this bench referred to it in a debate only a short time 
ago, and denounced Mr. Jefferson as having elected himself by fraud 
because he did not call the attention of the Senate and House of Rep- 
resentatives to that fact. 

If Mr. Jefferson's memory ought to be sent down to posterity cov- 
ered with infamy because he in his own case allowed a vote to be 
counted which was slightly informal on the outside of the envelope, 
I should be glad to know what ought to be done to those who 
would count this vote, which has neither form nor substance, 
which leaves out all the essential particulars that they are required to., 
certify. 

This great nation still struggles for justice. A million majority of 

white people send up their cry, and a majority of more than a quarter 

of a million of all colors demand it. But we can not complain.. I 
40 



620 FORENSIC. 

want you to understand that we do not complain. Usually it is said 
that " the fowler setteth not forth his net in sight of the bird " ; but 
this fowler set the net in sight of the birds that went into it. It is 
largely our own fault that we were caught. 

We are promised — and I hope the promise will be kept — that we 
shall have a good Government, fraudulent though it be : that the 
rights of the States shall be respected, and individual liberty be pro- 
tected. We are promised the same reformation which the Turkish 
Government is now proposing to its people. The Sultan promises that 
if he is sustained in his present contest he will establish and act upon 
certain principles. 

First, the work of decentralization shall commence immediately, 
and the autonomy of the provinces shall be carefully looked after. 
Secondly, the people shall be governed by their natural Judges ; they 
will not send Mohammedans nor Christian renegades from Constanti- 
nople down on them, but they shall be governed by people of their 
own faith. Thirdly, no subordinate officer, when he commits an ille- 
gal act, shall be permitted to plead in justification the orders of his 
superior. How much we need exactly that kind of reform in this 
country, and how glad we ought to be that our Government is going 
to be as good hereafter as the Turk's ! 

They offer us everything now. They denounce negro supremacy 
and carpet-bag thieves. Their pet policy is for the South to be aban- 
doned. They offer us everything but one ; bttt on that subject their 
lips are closely sealed. They refuse to say that they will not cheat us 
hereafter in the elections. If they would only agree to that ; if they 
would only repent of their election frauds, and make restitution of 
the votes they have stolen, the circle of our felicities would be full. 

If this thing stands accepted, and the law you have made for this 
occasion shall be the law for all occasions, we can never expect such a 
thing as an honest election again. If you want to know who will be 
President by a future election, do not inquire how the people of the 
States are going to vote. You need only to know what kind of scoun- 
drels constitute the returning boards, and how much it will take to 
buy them. 

But I think that even that will end some day. At present you 
have us down and under your feet. Never had you a better right to 
rejoice. Well may you say : *' We have made a covenant with death, 
and with hell are we at agreement ; when the overflowing scourge shall 
pass through, it shall not come unto us ; for we have made lies our 
refuge, and under falsehood have we hid ourselves." But, neverthe- 
less, wait a little while. The waters of truth will rise gradually, and 
slowly but surely, and then look out for the overflowing scourge. 
" The refuge of lies shall be swept away, and the hiding-place of false- 
hood shall be uncovered." This mighty and puissant nation will yet 



FORENSIC. 621 

rouse herself up like a strong man after sleep, and shake her invincible 
locks in a fashion yon little think of now. Wait : retribution will 
come in due time. Justice travels with a leaden heel, but strikes with 
an iron hand. God's mill grinds slow, but dreadfully fine. Wait till 
the flood-gate is lifted, and a full head of water comes rushing ouo 
Wait and you will see fine grinding then. 



THE END. 



VOLUMES I AND II NOW READY. 
A^ HISTORY 

OF TUB 

PEOPLE OF THE UNITED STATES, 

FROM THE REVOLUTION TO TEE CIVIL WAR. 

By JOHN BACH McMASTER 

To be completed in five volumes. Volumes I and II now ready. 
Octavo, cloth, gilt top. Price, $2.50 each. 

dealt with IrZt br^Vt SeVlv ^ magazines, books, are all 

brought with sue?s&a!;dTu?hd{l\iS^^^ ^"^^°'- ^^^ 

historical literature. There is not X nnoi ;„ *?? i 1 . ^^^^ *'™® "P0° °^^ 

180;;^a7?rr/n^tlt:*:afri^^^^^^ 'I' '^^^P'^ ^-^ ^-^ 1^90 to 

passed fn important any X/iZ^^^^ ' ^^•'' ""'°^. '"'P'"*" "'^«"^- 

Such a period is a crucial tc^for tlA^ f " American history of similar lenfrth. 

tory sul^ generis, whTlTJZeZ^lmT^ V"" '"^^ \°^"°^?« ^^« "^^^^^y a his- 
Mw York EvetHngrbst ^^^^ ''" '^"'^ "^^"""^ ^ our literature."- 

cesser. Althouc^i; tSe period denicted Ikt^ expectations raised by its prede- 
has refrained from deL'^ i7g frt^tS cSlirdTfln divergence, he 

and has never suffered himself to WpfYw/ detned hmits of his original plan, 

sion, but at a socSrstucS at a hi4or? nS of '.;fv^'"''''^V°°^^*/ "^""^''''-^^ dJ^'"^- 
the community at large 4e ?Lu SL f^^n^f ^^^^-^^f ^nd legislation, but of 



McMaster's History of the People of the United States. — (Continued.) 

"Amply fulfills the promise of the first volume, and will increase Mr. McMas- 
ter's popularity as an historian." — Boston Advertiser. 

" Instead of the dry bones of history, Mr. McMaster c:ives us fiesh and blood. 
In his ' History of the People of the United States ' (the second volume of which bus 
just been issued), he goes over arround previously traversed by grave w^riters of the 
older school. But, except the landmarks of indispensable dates, events, and per- 
sonages, which are the same in all histories of our country, the contents of the 
volumes thus far produced are substantially new. Mr. McMaster has found an 
abundance of unused materials in old newspapers, controversial pamphlets, pulpit 
addresses, State laws, unpublished letters, and other odds and ends of the past, 
which he has been industriously collecting for many years. He examines ttiese 
accumulations to discover, first of all, what the people were doing. Their houses, 
their food, theh drink, their clothes, their ornaments, their religious opinions, their 
political views, their weddings and funerals, their charities, their amusements, their 
vices as well as their virtues, the state of their commerce, trade, manufactures, and 
agriculture — all these, and hundreds of other things which we ought to know in 
order to understand tne forefathers as they actually lived and moved, are minutely 
and graphically portrayed in this work. The style of the historian is entirelv suited 
to this purpose. His primary object is to interest his readers while incicientallv 
instructing them. With this object lie excludes, ao far as possible, all dry and dull 
statistics. His matter being good to begin with, he adds to it the charm of a crisp, 
bright narrative style." — New York Journal of Commerce. 

" But his best work, that on which his reputation will rest with future historians, 
who will always hereafter be forced to consult the valuable material he has gathered 
with so much care — his best work is in the field of descriptive writing. He has 
evidently left no contemporary record untouched — newspaper files, rare pamphlets, 
obscure books of travel, heretofore only within reach of the specialist, are pressed 
into service, and their treasures of information spread forth with lavish generosity." 
— Literary World. 

" If anything, the latest volume of Mr. McMaster's work may be said to be more 
interesting than the first. The book is ably written, and contains a fund of informa- 
tion, much of which will be new to many readers." — Philadelphia North American. 

" It would be difficult to speak in too high terms of the intense interest aroused 
in the reader's mind by the style and character of this history." — Utica Herald. 

"We know of no historical writer — Macaulay not excepted— better able to pre- 
sent a vivid, realistic, living conception of the period of which he may be writing, 
of the people in their private and their public lives, of their roiinners and customs, 
and of such features as set them apart in their own epoch as representative out- 
growths." — Eclectic Magazine. 

"Yet no one can deny the intense interest of this second volume. ' It sparkles 
and glows on every page." — Christian Advocate. 

" Mr. John Bach McMaster's ' History of the People of the United States,' which 
has now reached its second volume, more than sustains the promise of the first vol- 
ume, and suggests, besides, several reflections as to the American historical manner 
when compared with the modern European mode and contrasted with the grand 
style of the ancients," — Mail and Express. 

" While the author has by no means neglected the political aspects of the inter- 
esting period covered by the present volumej but has treated them carefully and on 
the whole impartially, it is that portion of his work which is distinctively a history 
of the people, which portrays their social customs, manners, and habits, which tells 
us how they lived, which gives us an insight into their modes of thought, that gives 
it its chief value." — Moston Traveller. 



For sale b>/ all booJcsellers ; or sent, post-paid, on receipt of price. 



New York: D. APPLETON & CO., Publishers, 1, 3, & 5 Bond Street. 



COMPLETE IN SIX VOLUMES, OCTAVO. 
HISTORY OF THE 

UNITED STATES, 

From the Discovert of the Continent to the Establishment 
OF the Constitution in 1789, 

By GEORGE BANCROFT. 

The Author's last revision. Complete in six volumes, 8vo, 
cloth, library style, uncut, with gilt top, $2,50 ; sheep, 
$3.50 ; half calf, $4,50 per volume. 

The author has made extensive changes in the text, condensing in places, enlarging 
in others, and carefully revising. It is pracdcalli/ a new work, embodying the results 
of the latest researches, and enjoying the advantage of the auihor^s long and mature 
experience. 

The six volumes of this neio and fully revised edition of Bancroft's " History of 
the United States,''^ now complete, comprise the tivelve volumes of the original octavo 
edition, including the '■'■History of the Formation of the Constitution,'' last pub- 
lished, and are issued at just half the price. Volume VI. contains a new Portrait 
of Bancroft engraved on Steel. 

"A comparison of this installment of the revised edition with its equivalent 
in the former edition impresses us with the candor, the thoroughness, and the con- 
scientiousness of Mr. Bancroft's revision. Every page reveals some touch of the 
artist's hand, softening the language where it had run into needless asperity, but 
without detracting from its sinewy vigor, pruning redundancies, rounding off or 
smoothing down ruggednesses or infelicities, modifying statements so as to cause 
them to conform more exactly to newly discovered evidence — in fine, practically 
producing a new work while preserving the substantial integrity of the old one." 
— Harper's Magazine. 

" The work as a whole is in better shape, and is of course more authoritative 
than ever before. This last revision will be without doubt, both from its desirable 
form and accurate text, the standard one." — Boston Traveller. 

" It has not been granted to many historians to devote half a century to the 
history of a single people, and to live long enough, and, let us add, to be willing 
and wise enough, to revise and rewrite in an honored old age the work of a whole 
lifetime. This good fortune has been granted to Mr. Bancroft, and he has largely 
profited by it, as have also the majority of readers among his own countrymen, 
who, when American history is in question, go at once to his volumes as to an 
authoritative tribunal, and abide by his decisions, which in no case of any conse- 
quence, we believe, have ever been seriously or for long disturbed." — New York 
Mail ayid Express. 

" The extent and thoroughness of this revision would hardly be guessed with- 
out comparing the editions side by side. The condensation of the text amounts . 
to something over one third of the previous edition. There has also been very 
considerable recasting of the text. ' — The Independent (New York). 

"There is nothing to be said at this day of the value of 'Bancroft.' Its 
authority is no longer in dispute, and as a piece of vivid and realistic historical 
writing it stands among the best works of its class. It may be taken for granted 
that this new edition will greatly extend its usefulness." — Philadelphia North 
American. 

[See next page.] 



New Revised Edilioa of Bancroffs History of tie Uaited States -(Continued.) 

" We have made a comparison of the first volume with the edition of 1 8*76, 
and find that the work has been largely recast, the arrangement of the chapters 
and the minor divisions has been changed, many portions have been rewritten, 
and no pains have been spared in making necessary corrections as the result of 
criticism on the work or of further investigation. Many who purchased the last 
edition will regret that they did not wait for the author's final revisions ; but we 
presume that he had no intention at the time it was issued of going over his work 
again, even if he had the hope of living so long. It is a matter of general con- 
gratulation that his life and vigor have been spared, and that he is still engaged 
with all the energy of youth in his important literary works. The octavo volume, 
just issued, is a fine specimen of book-making, in clear type, on good paper, and 
is neatly bound." — New York Observer. 

"During the half-century, or almost that time, since the issue of Mr. Ban- 
croft's first volume, much new light has been shed upon the characters and events 
of the period covered by the ' History,' and no small proportion of it is due to 
the controversies aroused by the volumes as they successively appeared. Mr. 
Bancroft stood stoutly by his original text until the time came for the issue of the 
revised edition of 1876, when it was evident that he had carefully studied the 
criticisms his work had received during the preceding forty-two years and had 
profited by them. Now comes the announcement that he is engaged in a thorough 
and last revision of the whole work. The ten volumes of the original edition, 
and the two volumes issued last year, are to be wholly revised, rewritten where 
necessary, and the twelve volumes of the former issues comprised in six handsome 
octavo volumes. The entire work will thus be given at exactly half the price of 
the original edition, while, judging by the first installment, it will certainly lose 
nothing by comparison so far as appearance goes, and will be more valuable as 
embodying the latest information and containing the last touches of the author's 
hand." — Cleveland (Ohio) Herald. 

"The edition of 1876 exhibited no little pruning and correction; but the 
author has again gone over the entire field, and, with a care and devotion worthy 
of the theme and of his reputation, has wrought what he says must be his last 
revision. This latest edition will be sought by many who have for years been 
familiar with its predecessors." — Utica (N. Y.) Herald. 

" The merits of this standard work are too well known to need recapitulation, 
and the present edition will comprise the entire original work, complete in six 
volumes, and published at half the price of the original edition. On the whole, 
the work is much improved in its new dress and revised form, and will be wel- 
comed by all, for Bancroft's history of our country is still facile princeps among 
histories of our land." — Chicago Tribune. 

" On comparing this work with the corresponding volume of the ' Centenary ' 
edition of 1876, one is surprised to see how extensive changes the author has 
found desirable, even after so short an interval. The first thing that strikes cne 
is the increased number of chapters, resulting from subdivision. The first volume 
contains two volumes of the original, and is divided into thirty-eight chapters in- 
stead of eighteen. This is in itself an improvement. But the new arrangement 
is not the result merely of subdivision : the matter is rearranged in such a man- 
ner as vastly to increase the lucidity and continuousness of treatment. In the 
present edition Mr. Bancroft returns to the principle of division into periods, 
abandoned in the ' Centenary ' edition. His division is, however, a new one. As 
the permanent shape taken by a great historical work, this new arrangement is 
certainly an improvement." — The Nation (New York). 

For sale hy all booksellers ; or sent, post-paid, on receipt of price. 
New York: D. APPLETON & CO., Publishers, 1, 8, & 5 Bond Street. 




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